                                NOT FOR PUBLICATION WITHOUT THE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-5394-15T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAHEEM JONES,

     Defendant-Appellant.
_____________________________

                    Submitted November 5, 2018 – Decided December 14, 2018

                    Before Judges Messano and Fasciale.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 13-05-0503.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Rebecca L. Gindi, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Lauren Bonfiglio, Deputy Attorney
                    General, of counsel and on the briefs).

                    Appellant filed pro se supplemental briefs.

PER CURIAM
        A jury convicted defendant Raheem Jones of first-degree murder in the

stabbing death of L.S., 1 N.J.S.A. 2C:11-3(a)(1) and 2C:11-3(a)(2) (count one);

third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(d) (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(d) (count three). At sentencing, the State asserted defendant was a

"persistent offender" and moved to impose an extended term of imprisonment

pursuant to N.J.S.A. 2C:44-3(a).

        The judge merged counts two and three into count one. He granted the

State's motion and imposed a life term of imprisonment subject to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2. The judgment of conviction (JOC)

reflects defendant is "also subject to a period of thirty-five . . . years of parole

ineligibility on the extended sentence on his life term."

        Defendant raises the following issues on appeal.

              POINT I

              BECAUSE THE JURY HEARD INADMISSIBLE
              AND HIGHLY PREJUDICIAL EVIDENCE THAT
              [DEFENDANT] PUNCHED HIS GIRLFRIEND AND
              BROKE HER NOSE ON A PRIOR OCCASION,
              [DEFENDANT] WAS DENIED HIS RIGHT TO A
              FAIR TRIAL.




1
    We use initials to maintain the confidentiality of the victim and her family.


                                                                           A-5394-15T3
                                          2
             POINT II

             EVEN IF THIS COURT FINDS THAT THE OTHER-
             CRIME EVIDENCE WAS ADMISSIBLE, THE
             TRIAL COURT'S FAILURE TO INSTRUCT THE
             JURY ON THE LIMITED USE OF THE EVIDENCE
             AND FAILURE TO RELATE THE OTHER-CRIME
             EVIDENCE TO THE FACTS OF THE CASE
             DENIED [DEFENDANT] A FAIR TRIAL. (Not
             Raised Below).

             POINT III

             THE PROSECUTOR'S HIGHLY PREJUDICIAL
             EMOTIONAL APPEALS TO THE JURY IN
             SUMMATION WERE IMPROPER AND REQUIRE
             REVERSAL.

             POINT IV

             [DEFENDANT]'S DISCRETIONARY EXTENDED-
             TERM SENTENCE SHOULD BE VACATED AND
             REDUCED BECAUSE IT WAS PROCEDURALLY
             DEFECTIVE AND MANIFESTLY EXCESSIVE.

       Defendant raises the following points in a pro se supplemental brief.

             POINT I

             THE TESTIMONY BY PATROLMAN DANIEL
             LOFFIO AS TO THE DECLARATION MADE BY
             THE NON-TESTIFYING THREE[-]YEAR[-]OLD
             [M.S.]   VIOLATED     CRAWFORD      V.
                         [2]
             WASHINGTON,       FOR    THAT     THE
             DECLARATION WAS TESTIMONIAL.     [M.S.]
             WAS NOT UNAVAILABLE TO TESTIFY[,] AND

2
    Crawford v. Washington, 541 U.S. 36 (2004).



                                                                        A-5394-15T3
                                        3
            THERE WAS NO PRIOR OPPERTUNITY [SIC]
            FOR THE DEFENSE TO CROSS[-]EXAMINE HER.
            U.S. CONST. AMENDS. VI, XIV, N.J. CONST.
            (1947) ART. I[,] PARAS[.] 1, 9, AND 10.

            POINT II

            THE COURT[] VIOLATED DEFENDANT[']S
            FIFTH,       SIXTH, AND  FOURTEENTH
            AMENDMENT RIGHTS OF DUE PROCESS FOR
            ALLOWING FRAUDULANT [SIC] TESTIMONY
            BY KEY WITNESS[ES] FOR THE STATE[,]
            BASHON HARDY AND JOSEPH TAYLOR. [(Not
            raised below).]

Having considered these arguments in light of the record and applicable legal

principles, we affirm defendant's conviction. The State concedes the judge

erred by imposing a sentence in addition to the life sentence imposed on the

murder conviction.     However, it is unclear whether the judge intended to

impose an extended term or imposed a life term pursuant to N.J.S.A. 2C:11-

3(b)(1) (permitting "a specific term of years . . . between [thirty] years and life

imprisonment" as an ordinary sentence for murder). If the judge intended to

impose an extended term, he clearly did not follow the dictates of State v.

Pierce, 188 N.J. 155 (2006). We therefore vacate the sentence imposed and

remand the matter for resentencing.

                                        I.

      Approximately two months before trial, the judge held a hearing

pursuant to N.J.R.E. 104(a) at which the State produced no witnesses but

                                                                          A-5394-15T3
                                        4
proffered evidence it intended to introduce at trial.      Among other rulings,

which we discuss in detail below, the judge concluded that a statement made

by the victim's three-year-old granddaughter, M.S., to one of the responding

police officers, Patrolman Daniel Loffio, was admissible as an excited

utterance. N.J.R.E. 803(c)(2). The judge conducted a hearing prior to the start

of trial, at which the State produced Loffio as a witness. Loffio testified about

the circumstances surrounding the statement M.S. made to him — "Poppy

killed Grandma." The judge again ruled M.S.'s statement was admissible, and

in later testimony, Loffio told the jury about the child's statement.

      In other testimony, S.S., the victim's daughter and M.S.'s mother, said

defendant and the victim had been dating for ten-to-twelve years, and

defendant frequently stayed in the apartment S.S. shared with her mother. On

December 12, 2012, S.S. left M.S. in the care of the victim and S.S.'s

grandmother. When S.S. arrived home in the early evening hours, M.S. was in

the hallway, emotional and crying. M.S., who referred to defendant as "papa,"

told S.S., "my [p]apa killed my grandmother." S.S. ran upstairs and found her

mother in a pool of blood. She immediately called 9-1-1, and the jury heard a

recording of S.S.'s call.    S.S. made the call with her own cellphone and

testified her mother's phone was never located again.




                                                                        A-5394-15T3
                                        5
      The jury also heard the 9-1-1 call the victim made shortly before S.S.

arrived. L.S. told the dispatcher, "I was stabbed to death.        My boyfriend

stabbed me . . . [a]ll over my body."

      Joseph Taylor testified that when he heard his cousin, L.S., had been

injured, he called her cellphone. Defendant answered and quickly hung up.

Taylor went to the hospital and learned L.S. had died.          Defendant never

appeared at the hospital.

      Defendant's uncle testified that he received a call from defendant, who

said he had just stabbed his girlfriend. Defendant told his uncle "he caught her

on the phone talking to another guy[,]" and "snapped."           Bashon Hardy,

defendant's cousin, testified that defendant arrived at his back door later in the

evening, distraught and with his clothing covered in blood. Defendant told

Hardy, "I think I f****d up. I think I killed my girl."

      DNA testing revealed defendant was a major source of blood collected

from under the victim's fingernails, however, other male relatives could not be

completely ruled out because they shared the same profile.          The autopsy

revealed the victim was stabbed eleven times with various kitchen knives,

causing severe lacerations to her neck, chest, back and left hand. One stab was

so forceful that the blade of the knife broke off and lodged in the victim's neck.

      Defendant did not testify or call any witnesses.



                                                                         A-5394-15T3
                                        6
                                        II.

                                        A.

      At the pre-trial N.J.R.E. 104 hearing, the State sought to introduce

evidence of defendant's prior bad acts, including his assault of L.S. in 2002.

The judge characterized the proffered evidence as "prior acts of domestic

violence," introduced "through the testimony of the . . . victim's children , . . .

the fact of the [d]efendant's guilty plea to an agg[ravated] assault . . . ."

Applying the analysis required by State v. Cofield, 127 N.J. 328 (1992), over

defendant's objection, the judge ruled the evidence was admissible.

      During the trial testimony of S.S., at sidebar, the prosecutor informed

the judge he intended to elicit sanitized evidence regarding defendant's prior

assault of L.S. The testimony before the jury was limited to the following:

            Q:    [S.S.], I want to direct your attention now.
            When you said your mom and [defendant] had been on
            and off again for at least ten years --

            A:     Yes.

            Q:     -- that would include that -- being in that dating
            relationship back in October 2002?

            A:     Yes.

            Q:   Specifically I want to direct your attention to
            October 20[,] 2002. Do you remember back then?

            A:     Not really.



                                                                           A-5394-15T3
                                         7
     Q:   Do you remember an incident where your
     mother had a broken nose?

     A:    Yes.

     Q:    And she had to go to the hospital for that broken
     nose?

     A:    Yes

     Q:    Do you remember how she got that broken nose?

     A:    Yes.

     Q:   Can you tell us how she got that -- just tell us
     how she got that broken nose?

     A:    [Defendant] punched her in her nose.

The judge immediately provided the following instructions:

           The State is seeking to introduce evidence that
     defendant previously assaulted [L.S.]. Normally such
     evidence is not permitted under the Rules of Evidence.
     The rules specifically exclude evidence that a
     defendant has committed another crime or wrong or
     bad act when it's offered only to show that he has a
     disposition or tendency to do wrong, and therefore
     must be guilty of the charged offense.

            Before you can give any weight to this evidence
     you must be satisfied that the defendant committed the
     other act of domestic violence. If you are not so
     satisfied you may not consider it for any purpose.

           Our rules do, however, permit evidence of
     another crime or wrong or bad act when the evidence
     is used for certain specific narrow purposes. In this
     case[,] the State is seeking to introduce evidence that
     the defendant acted violently towards the victim,

                                                               A-5394-15T3
                                8
            herein, [L.S.], on a prior occasion. It seeks to do so in
            order to establish motive, intent, identity, or absence
            of mistake or accident with regard to the charged
            murder in this case.

                   Whether this evidence does, in fact, demonstrate
            defendant's motive, intent, identity, or absence of
            mistake is for you to decide. You may decide that the
            evidence does not demonstrate motive, intent, identity,
            or absence of mistake is not helpful to you at all. In
            that case you must disregard the evidence.

                  On the other hand, you may decide that that
            evidence does demonstrate motive, intent, identity or
            absence of mistake, and use it for that specific
            purpose.

                  You may not, however, use this evidence to
            decide that the defendant has a tendency to commit
            crimes or that he is a bad person. That is[,] you may
            not decide that just because the defendant has
            committed the previous bad act that me [sic] must be
            guilty of the present crimes.

                  Any evidence that's admitted in this regard will
            be admitted only to help you decide the specific
            questions of motive, intent, identity, or absence of
            mistake. You may not consider it for any other
            purpose and may not find the defendant guilty now
            simply because the State has offered evidence that he
            committed a previous bad act.

The judge repeated these instructions nearly verbatim in his final jury charge.

      Defendant contends it was error to admit any evidence of his prior

assault on the victim pursuant to N.J.R.E. 404(b), and, even if the evidence

was admissible, the judge's instructions were inadequate and require reversal.



                                                                        A-5394-15T3
                                       9
            N.J.R.E. 404(b) provides:

            [E]vidence of other crimes, wrongs, or acts is not
            admissible to prove the disposition of a person in
            order to show that such person acted in conformity
            therewith. Such evidence 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.

We afford great deference to the trial court's ruling on the admission of 404(b)

evidence and "will . . . reverse[] only in light of a 'clear error of judgment.'"

State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting State v. Barden, 195 N.J.

375, 391 (2008)).

      We need not review all four prongs of the well-established Cofield test,

except to say that under the first prong, "[t]he evidence of the other crime must

be admissible as relevant to a material issue."        Barden, 195 N.J. at 389

(quoting Cofield, 127 N.J. at 338).      The Court has recognized the "broad

admission" of a "'wider range of evidence'. . . to prove motive, so long as it is a

material issue in a case."     State v. Calleia, 206 N.J. 274, 293-94 (2011)

(quoting State v. Covell, 157 N.J. 554, 565 (1999)).          Motive is material

whenever the defendant asserts his innocence. State v. Castagna, 400 N.J.

Super. 164, 178 (App. Div. 2008) (citations omitted).

      During the pre-trial N.J.R.E. 104 hearing, relying in part on our decision

in State v. Angoy, 329 N.J. Super. 79 (App. Div. 2000), the State argued prior

                                                                          A-5394-15T3
                                        10
incidents of domestic violence demonstrated defendant's jealousy and

possessiveness, providing a motive for the fatal assault. There, we held that

evidence of the defendant's prior assault of the victim, one month before the

homicide, adduced through the victim's mother's eyewitness testimony was

properly admitted "as relevant to the jealousy and possessiveness which the

State claimed" was the defendant's motive. Id. at 85-86.

      The judge's decision to admit the proffered evidence was entirely sound,

given the plethora of cases in addition to Angoy, which hold evidence of prior

violence between a defendant and victim is probative of motive and intent.

See, e.g., Castagna, 400 N.J. Super. at 183. ("Evidence of a history of abuse of

a victim by a defendant has been held admissible to prove motive.") (citing

State v. Engel, 249 N.J. Super. 336, 372-74 (App. Div. 1991) (collecting

cases)); State v. Townsend, 374 N.J. Super. 25, 42 (App. Div. 2005), rev'd on

other grounds, 186 N.J. 473 (2006) (evidence of domestic violence was

"highly probative of several issues in dispute -- defendant's intent or purpose,

his state of mind, his motive, the absence of mistake or accident").

      In an effort to sanitize evidence of the prior assault, the prosecutor

limited his questioning of S.S. See Barden, 195 N.J. at 390 ("In an effort to

reduce the inherent prejudice in the admission of other-crimes evidence, our

courts require the trial court to sanitize the evidence when appropriate.")



                                                                        A-5394-15T3
                                       11
(citing State v. Collier, 316 N.J. Super. 181, 185 (App. Div. 1998), aff'd o.b.,

162 N.J. 27 (1999)).     Defendant argues that the sanitization resulted in

evidence that was no longer probative of motive. Instead, the testimony only

proved defendant punched the victim years earlier 3 and did nothing more than

permit the jury to conclude defendant had a propensity for violence.

      The judge based his pre-trial ruling on proffered testimony from L.S.'s

relatives about incidents of domestic violence, including an aggravated assault

that occurred in 2002.     The evidence actually adduced before the jury,

however, lacked any probative value as to motive, intent or other permissible

use under N.J.R.E. 404(b). In other words, proving defendant punched L.S.

and broke her nose ten years before the fatal stabbing, without any testimo ny

regarding the circumstances, lacked relevancy. N.J.R.E. 401.

      The judge had an obligation to reconsider his pretrial ruling in light of

the evidence actually adduced. As we have said,

            [i]n the event the trial court addresses [evidentiary]
            issues in a pre-trial proceeding, the trial court must be
            sensitive to the need to revisit its pre-trial rulings in

3
  The second Cofield prong requires the uncharged bad act "be similar in kind
and reasonably close in time to the offense charged." 127 N.J. at 338. The
Court has since held it "is not universally required." State v. Rose, 206 N.J.
141, 163 (2011). In making the pre-trial ruling, the judge concluded the
passage of time between the 2002 assault and the 2012 homicide was not fatal
to admissibility because defendant was incarcerated for much of the
intervening years.


                                                                        A-5394-15T3
                                       12
             light of the developing record at trial. The record
             developed at trial may differ from the record
             developed below on the parties' motions, perhaps
             substantially.

             [State v. Cordero, 438 N.J. Super. 472, 484 (App. Div.
             2014) (alteration in original) (citations omitted).]

However, there was no objection at sidebar when the prosecutor signaled his

intention to introduce the highly sanitized evidence of the prior assault, and

defense counsel never posed an objection thereafter to the truncated proof. In

light of the substantial evidence of defendant's guilt, the admission of S.S.'s

very limited testimony was not "clearly capable of producing an unjust resul t."

R. 2:10-2.

      Additionally, the judge immediately gave a limiting instruction that told

the jury it could not consider the prior assault as evidence of defendant's

violent predisposition. There was no objection, nor did defendant object when

the judge repeated the instruction in his final charge.

      "Our rules provide that a defendant waives the right to contest an

instruction on appeal if he does not object to the instruction. R. 1:7-2. We

may reverse on the basis of unchallenged error if we find error that was

'clearly capable of producing an unjust result.' R. 2:10-2." State v. Torres,

183 N.J. 554, 564 (2005). The Court has said that

             [i]n the context of a jury charge, plain error requires
             demonstration of "[l]egal impropriety in the charge

                                                                       A-5394-15T3
                                        13
            prejudicially affecting the substantial rights of the
            defendant 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. Burns, 192 N.J. 312, 341 (2007) (second
            alteration in original) (quoting State v. Jordan, 147
            N.J. 409, 422 (1997)).]

We assess the allegation of error in light of "the totality of the entire charge,

not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citing State v.

DiFrisco, 137 N.J. 434, 491 (1994)). While an erroneous jury charge may be a

"'poor candidate[] for rehabilitation' under the plain error theory," Jordan, 147

N.J. at 422-23 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we

nonetheless consider the effect of any error in light "of the overall strength of

the State's case." Chapland, 187 N.J. at 289.

      The judge should have tailored the charge to the specific grounds for

admissibility.   See, e.g., State v. Hernandez, 170 N.J. 106, 132-33 (2001)

(finding plain error in charge that failed to specifically explain permissible use

of 404(b) evidence). However, given the limited nature of the testimony and

the strength of the State's case, the flawed charge does not "raise reasonable

doubt about the reliability of defendant's conviction . . . ." Id. at 133 (citing R.

2:10-2).




                                                                           A-5394-15T3
                                        14
        We conclude that neither the admission of evidence of the prior assault

nor the judge's jury instructions require reversal.

                                         B.

        We reject both points raised by defendant in his pro se supplemental

brief. The judge properly decided M.S.'s statement to Loffio was admissible

as an excited utterance, and, because it was not testimonial, there was no

Confrontation Clause violation. See State v. Buda, 195 N.J. 278, 304 (2008)

(child's spontaneous statement to social worker after assault was admissible).

        Defendant also asserts that Hardy's trial testimony was inconsistent with

a prior statement he made to law enforcement. As we understand the point,

defendant argues the judge should not have permitted Hardy to testify without

a Gross4 hearing. However, defendant misunderstands the holding in Gross,

which requires the proponent establish the reliability of a witness's prior

inconsistent statement at a separate hearing before it may be admitted as

substantive evidence. 121 N.J. at 15-16. Neither the prosecutor nor defense

counsel sought to admit Hardy's prior statement as substantive evidence. 5


4
    State v. Gross, 121 N.J. 1 (1990).
5
    Although the point heading in defendant's brief incorporates a similar
argument regarding Taylor's testimony, defendant makes little reference to
Taylor in the brief and asserts no substantive legal argument as to error. Any
issue not properly briefed is considered waived. Drinker Biddle & Reath LLP
                                                                    (continued)

                                                                         A-5394-15T3
                                         15
                                       C.

      Defense counsel lodged an objection after the prosecutor completed his

summation, asserting the State had injected emotion and "God" into the case.

The judge considered the argument and denied the objection, ruling the

comments did "not inject[] any emotion into [the case] that wasn't already

there." He noted the prosecutor's comments about God were in the context of

the victim's own words during her 9-1-1 call to police.

      On appeal, defendant cites those remarks and others, as well as the

prosecutor's decision to replay both 9-1-1 calls and demonstrate the stabbing

during summation, and argues the totality of the summation requires reversal.

We disagree.

      While prosecutors are entitled to zealously argue the merits of the State's

case, State v. Smith, 212 N.J. 365, 403 (2012), they occupy a special position

in our system of criminal justice. State v. Daniels, 182 N.J. 80, 96 (2004).

"[A] prosecutor must refrain from improper methods that result in a wrongful

conviction, and is obligated to use legitimate means to bring about a just

conviction." Ibid. (quoting State v. Smith, 167 N.J. 158, 177 (2001)). "[T]he


(continued)
v. N.J. Dep't of Law and Pub. Safety, Div. of Law, 421 N.J. Super. 489, 496
n.5 (App. Div. 2011).



                                                                         A-5394-15T3
                                       16
assistant prosecutor's duty is to prove the State's case based on the evidence

and not to play on the passions of the jury or trigger emotional flashpoints,

deflecting attention from the hard facts on which the State's case must rise or

fall." State v. Blakney, 189 N.J. 88, 96 (2006) (citing State v. Frost, 158 N.J.

76, 82 (1999)).

      "Our task is to consider the 'fair import' of the State's summation in its

entirety."    State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v.

Wakefield, 190 N.J. 397, 457 (2007)). Even if the prosecutor exceeds the

bounds of proper conduct, "[a] finding of prosecutorial misconduct does not

end a reviewing court's inquiry because, in order to justify reversal, the

misconduct must have been 'so egregious that it deprived the defendant of a

fair trial.'" Smith, 167 N.J. at 181 (quoting Frost, 158 N.J. at 83).

      Here, we agree with the trial judge's assessment of the prosecutor's

conduct.     The summation was firmly tethered to the evidence in the case,

which rebutted the defense contention that another man was L.S.'s assailant.

We find no reason to reverse defendant's conviction.

                                        III.

      Defendant argues the judge misapprehended the State's motion for an

extended term and concluded the life sentence was mandatory and not




                                                                        A-5394-15T3
                                        17
discretionary.   He also contends the life sentence subject to NERA was

excessive.

      "Appellate review of sentencing is deferential, and appellate courts are

cautioned not to substitute their judgment for those of our sentencing courts."

State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 594,

606 (2013)). Generally, we only determine whether:

             (1) the sentencing guidelines were violated; (2) the
             aggravating and mitigating factors found by the
             sentencing court were not based upon competent and
             credible evidence in the record; or (3) "the application
             of the guidelines to the facts of [the] case makes the
             sentence clearly unreasonable so as to shock the
             judicial conscience."

             [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
             original) (quoting State v. Roth, 95 N.J. 334, 364-65,
             (1984)).]

      Here, the judge initially considered whether defendant was eligible for a

discretionary extended term because he was a persistent offender. Pierce, 188

N.J. at 169. Defendant did not dispute at trial, nor does he dispute on appeal,

that he qualifies as a persistent offender. N.J.S.A. 2C:44-3(a).

      The judge then found aggravating factors one, three, six, and nine. See

N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense and whether it

was committed in "an especially heinous, cruel or depraved manner"); (a)(3)

(the risk of re-offense); (a)(6) (the extent of defendant's prior criminal record);



                                                                          A-5394-15T3
                                       18
and (a)(9) (the need to deter defendant and others).         The judge carefully

explained his findings, which are supported by adequate credible evidence in

the record. He found no mitigating factors. N.J.S.A. 2C:44-1(b).

      The judge then noted,

                   [e]ven were this [defendant's] very first felony
            conviction of any kind, he would, . . . be exposed to a
            life term with [thirty] years of parole ineligibility as a
            minimum. Based on the extended term, the applicable
            statute makes it a [thirty-five]-year minimum term,
            and the [c]ourt is going to sentence [defendant]
            accordingly to a life term. He is to serve [thirty-five]
            years as a minimum . . . .

At this point, the prosecutor reminded the judge that NERA applied. The

judge then stated, "There is [eighty-five percent] of the term would have to be

served." As noted, the JOC reflects both a life term subject to NERA and "a

period of thirty-five . . . years of parole ineligibility on the extended sentence

on [defendant's] life term."

      We are unable to discern whether the judge imposed an ordinary term of

life imprisonment subject to NERA, which is permitted under N.J.S.A. 2C:11-

3(b)(1), or whether he viewed the life term as mandatory or discretionary

pursuant N.J.S.A. 2C:44-3(a).     If the latter, the judge failed to follow the

dictates of Pierce. Our inability to properly evaluate both the procedural and

substantive justification for the sentence compels us to vacate the sentence and

remand to the court for resentencing.

                                                                         A-5394-15T3
                                        19
      To the extent the JOC can be read as having imposed two sentences, it

must be corrected. Additionally, we hasten to add that our opinion should not

be understood as disapproving any particular sentence the judge may impose in

exercise of his broad sentencing discretion.

      We affirm defendant's conviction. We vacate the sentence imposed and

remand the matter to the trial court for resentencing.    We do not retain

jurisdiction.




                                                                     A-5394-15T3
                                       20
