                                NOT FOR PUBLICATION WITHOUT THE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-0069-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SQUIRE FOSTER, a/k/a
MICHAEL DARBY,
SQUIRE JOHNSON, SQUIRE
EMANUEL FOSTER, and
SQUIRE EMMANUEL FOSTER,

     Defendant-Appellant.
_______________________________

                    Argued September 10, 2019 – Decided September 26, 2019

                    Before Judges Yannotti, Currier and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 17-01-0012.

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

                    Rookmin Cecelia Beepat, Assistant Prosecutor, argued
                    the cause for respondent (Esther Suarez, Hudson
            County Prosecutor, attorney; Jaimee M. Chasmer,
            Assistant Prosecutor, on the brief).

PER CURIAM

      Defendant was tried before a jury, found guilty of aggravated assault and

other offenses, and sentenced to an aggregate term of ten years of incarceration,

with an eighty-five percent period of parole ineligibility, pursuant to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from the

judgment of conviction (JOC) dated August 3, 2017. For the reasons that follow,

we affirm in part, reverse in part, and remand for entry of an amended JOC and

further proceedings.

                                       I.

      A Hudson County grand jury charged defendant with: second-degree

aggravated assault by purposely or knowingly causing, or attempting to cause,

serious bodily injury to David Halley (Halley), N.J.S.A. 2C:12-1(b)(1) (count

one); first-degree robbery of Halley, N.J.S.A. 2C:15-1(a)(1) (count two); third-

degree criminal restraint of Halley in circumstances exposing him to risk of

serious bodily injury, N.J.S.A. 2C:13-2(a) (count three); third-degree making

terroristic threats to Halley and Hodge, N.J.S.A. 2C:12-3(b) (counts four and

seven, respectively); fourth-degree unlawful possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-5(d) (count five); third-degree possession of

                                                                         A-0069-17T2
                                       2
a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six) and criminal

restraint of Hodge by holding her in a condition of involuntary servitude,

N.J.S.A. 2C:13-2(b) (count eight).

       Prior to trial, the trial judge conducted a Wade1 hearing, and ruled that the

State could admit a statement Hodge provided to law enforcement, in which she

identified defendant. The judge also conducted a hearing to determine whether

the State could admit defendant's statement to the police. The judge ruled that

the State could admit defendant's statement. The judge noted that although

defendant had not been informed of his Miranda2 rights, his statement was

spontaneous and not made in response to any police questioning. In addition,

the judge ruled that the State could admit recordings of two 9-1-1 calls made

shortly after the offenses were committed.

       In June 2017, defendant was tried before a jury. At the trial, Halley

testified that in the early morning hours of September 3, 2016, he was at an

apartment in Jersey City, where his girlfriend and children were living. Halley

knew defendant and said that sometimes in the morning, he and defendant would

"go get coffee." At around 4:45 a.m. or 5:00 a.m., defendant arrived and



1
    United States v. Wade, 388 U.S. 218 (1967).
2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                            A-0069-17T2
                                         3
knocked on the window. Halley got dressed, left the apartment, and joined

defendant.

      Defendant told Halley he needed to stop at his residence. At the time,

defendant and Hodge were living nearby in a rooming house. Defendant and

Halley went into the house, and Halley stopped to use the bathroom. Thereafter,

Halley went into a room that defendant had entered. Halley testified that when

he first entered the room, defendant was speaking with Hodge, and Halley was

on his cell phone, waiting for defendant "to finish whatever he was doing."

Halley stated that defendant's conversation with Hodge became hostile.

Defendant was questioning Hodge "over and over about cheating on him" and

"a condom situation."

      Halley had been sitting on a recliner, and as he started to get up, defendant

stabbed him in the thigh with something sharp. Halley said he "sat back down,"

concerned that defendant had stabbed him in his main artery. He felt a "warm

feeling," and saw a "big gash," which was spilling blood.      Halley asked for a

rag. Halley testified that defendant had been drinking liquor and defendant

claimed it contained four grams of "Molly." 3 Defendant handed Halley a rag,



3
 "Molly" is methylenedioxy-methamphetamine (MDMA), a drug also known as
"Ecstasy."
                                                                           A-0069-17T2
                                        4
and commented that Halley had probably used it to wash off his genitals. Halley

placed the rag on his wound, and defendant accused him of sleeping with his

"woman."

      Defendant took Halley's cell phone and checked to see if it had Hodge's

number. Later, defendant stabbed him in the leg several times, using a knife

with a fold-up blade. Halley described the knife as about four to six inches in

length, with a black and red handle. Halley further testified that defendant held

him "hostage" for several hours and "tormented" him. Around 7:00 a.m., Halley

was "feeling woozy." When defendant saw him "make a move," defendant hit

him in the other thigh.

      Several hours later, Halley again attempted to leave the room and jumped

behind Hodge. Defendant told Hodge if he had to "hurt" Halley, he was going

to kill her too. Hodge managed to get out of the room, leaving Halley behind

with defendant. Defendant told Halley he was going to stab him in the heart and

then stabbed Halley in the chest.

      Halley held defendant with one hand as defendant stabbed him again. He

pushed defendant back, opened the door, and limped out of the room. Halley

went to the front door, which was locked. Defendant stabbed Halley in his back

and kidney area. Halley then struck defendant with his elbow. Defendant


                                                                         A-0069-17T2
                                       5
stumbled and fell back. According to Halley, defendant tried to stab him in his

"private area."

        Defendant opened the front door and told Halley he was not "going to get

too far." Halley stumbled down the steps and ran to his girlfriend's apartment.

The Jersey City police and emergency service workers arrived there and

transported Halley to the Jersey City Medical Center (JCMC), where he was

treated for his injuries.

        Hodge testified that in September 2016, she and defendant were living

together in a rooming house in Jersey City. Defendant was her fiancé. Early on

the morning of September 3, 2016, Hodge and defendant were in their room.

Halley was there also, and they were "just talking."

        The assistant prosecutor asked Hodge if defendant had become hostile.

She replied that she had been drinking at that time and her memory was "kind

of fuzzy." She stated that when they were in the room, "everything was fine."

She did not recall seeing defendant with a knife or seeing him stab Halley.

        The State sought to admit a recorded statement that Hodge provided to the

Jersey City police officers on the day of the incident. The trial judge conducted

a Gross4 hearing, outside the presence of the jury, and ruled that the State could


4
    State v. Gross, 121 N.J. 1 (1990).
                                                                          A-0069-17T2
                                         6
admit Hodge's statement. The recording of the statement was played for the

jury.

        In her statement, Hodge said that she, defendant, and a person she knew

as "D" had been in their room, and she identified Halley as "D." She commented

that defendant had begun to question her about a condom he found several days

earlier on the floor of the bathroom in the rooming house.

        According to Hodge, defendant implied that she and Halley had sex in the

bathroom. When Hodge denied having any such encounter, defendant told her

that she was lying. Halley asked defendant what she had been lying about.

Hodge told Halley that she and defendant had "trust issues."

        Hodge stated that Halley got up and suggested that they go to the store.

Defendant continued to question Hodge and Halley about the alleged sexual

encounter and then stabbed Halley in the leg. Defendant said he knew Hodge

and Halley "had some kind of relationship or some kind of dealings," but she

told defendant she did not know Halley.

        Hodge saw that Halley was bleeding. She said defendant should relax,

but defendant was threatening and "looked really agitated." Hodge stated that

Halley had "a bad injury." She told defendant he had to stop because Halley had




                                                                        A-0069-17T2
                                        7
not done anything, but defendant did not believe her. She said defendant went

on a rant, called her a bitch, and told her to shut "the fuck up."

      Defendant then demanded that Hodge tell him everything, but she said

there was nothing to tell. Defendant told Halley he had "violated" him and "this

is [his] justice for doing it." Hodge again told defendant nothing had been going

on between her and Halley. Defendant stated that Halley could not leave the

room until he told the truth, and that he would not let him leave with his life.

Defendant punched Halley in the face.

      Hodge stated that Halley got up and tried to leave the room. He jumped

on the bed, screaming. According to Hodge, Halley told defendant he was not

going to die "because of this." Halley insisted he had done nothing wrong.

Halley grabbed a ten-pound weight to defend himself, jumped off the bed, and

positioned himself behind Hodge.

      Defendant told Hodge that if she did not move, he would cut her also.

She ran out of the room. As Hodge was leaving, she saw defendant stab Halley

in the shoulder. Hodge's daughter also lived in the rooming house. Hodge ran

to her daughter's room, and later, her daughter told her she saw Halley leave

Hodge's room. Defendant and Halley left the house. Someone called the police,

and officers arrived ten minutes later.


                                                                         A-0069-17T2
                                          8
      The State played the tapes of the two 9-1-1 calls, and Dr. Victor Ha, a

trauma surgeon at JCMC, who treated Halley, testified. Ha stated that Halley

had a total of nine stab wounds. He had wounds to his back, right leg and thigh,

left thigh, and between his chest and abdomen.        Ha testified that he was

concerned about the wounds in or near Halley's chest, because they were close

to his heart. Ha found, however, that Halley's wounds were not life-threatening.

      Officer Wayne Rodriguez of the Jersey City Police Department (JCPD)

testified that he works in the unit that handles 9-1-1 and other calls. Rodriguez

received a call at around 9:42 a.m. on September 3, 2016. The caller reported

that her boyfriend had been stabbed, and he was in the backyard of their

residence.

      Officer Sean Butler of the JCPD was on duty on the morning of September

3, 2016. He testified that he responded to the scene and spoke with Hodge, who

pointed out a male walking down the street, and stated that he had just stabbed

"somebody." She also said that the man who had been stabbed was in the

backyard of a residence on the street. Butler found Halley in the yard. He was

bleeding heavily, but still conscious. Halley gave Butler a description of the

individual who stabbed him.




                                                                         A-0069-17T2
                                       9
      JCPD Officer Steven Dua testified that on September 3, 2016, he

responded to the report of a domestic violence incident and possible stabbing.

He discovered defendant walking down the street and ordered him to the ground.

Dua said defendant was in possession of two cell phones.

      Emergency medical technician (EMT) Matt Kiefer also responded to the

scene. He found a man in the backyard of a residence, who had been stabbed

multiple times. He thought the man's condition was life-threatening. Kiefer and

other EMTs dressed the wounds, controlled the bleeding, and transported the

man to the hospital.

      Officer Jorge Lopez of the JCPD also responded to the scene. He testified

that he and other police officers located defendant and placed him in handcuffs.

Lopez said that defendant's clothes were bloodstained, but he did not have any

injuries. According to Lopez, defendant stated at least three times, "not to flush

the rubber."

      After the State rested, defendant moved for a judgment of acquittal on the

robbery charge. The judge denied the motion.

      Defendant then testified that in September 2016, he was living with Hodge

in a room in a rooming house in Jersey City. He knew Halley, having first met

him a month or two earlier, and they had certain things in common. According


                                                                          A-0069-17T2
                                       10
to defendant, he and Halley used drugs on a daily basis, including Molly,

marijuana, and PCP. 5

          On September 3, 2016, at around 4:00 a.m. or 5:00 a.m., defendant called

Halley because defendant had "some good stuff." Halley did not answer the call

so defendant sent him a text message. Halley was at his girlfriend's apartment,

which was nearby, and defendant walked there. Halley was speaking with "some

dude" about PCP. Halley took defendant inside.

         Defendant testified that Halley got into an argument with his girlfriend.

Defendant and Halley left the apartment and walked to the rooming house where

defendant was living with Hodge.           Defendant thought some of Halley's

comments were strange because several days earlier, defendant found a condom

in the bathroom in the rooming house, and he thought Halley was boasting about

it.

         Defendant invited Halley inside.     According to defendant, they were

already high, and he "was just going with the flow, just relaxing." He stated that

they were "popping [M]olly." They went to defendant's room. Defendant laid

down on the bed, "smoking." Hodge was sitting on the bed with him.




5
      PCP is Phencyclidine, a mind-altering drug that may cause hallucinations.
                                                                           A-0069-17T2
                                         11
      Halley said he had to use the bathroom and left. Defendant thought Halley

was "taking long," and he went to check on him. He saw Halley standing outside

the room. They came back into the room, and Halley told defendant he had

something he wanted to tell him.

      According to defendant, Halley mentioned the best friend of Hodge's

daughter and a "whole bunch of other stuff." Defendant thought Halley did not

know Hodge, and he wondered how Halley knew Hodge's daughter and her

friend. Defendant said that at that moment, he could not breathe.

      Defendant noted that he had not previously mentioned the condom to

Halley because Hodge said she had never seen Halley before.           Defendant

testified that he, Hodge, and Halley were in the room, and he was "still

smoking." He remembered arguing with Halley, but claimed he did not know

"exactly [what] we [were] arguing about." He stated that he did not remember

what happened after that.

      On cross-examination, the assistant prosecutor showed defendant a

photograph, which was taken when he was arrested. He admitted that the photo

showed his pants covered in blood. He was asked if he sustained any injuries

that day, and he replied, "Not that I can recall." Defendant stated that if there

was blood on his pants, it was not his. He also stated that two days before


                                                                         A-0069-17T2
                                      12
September 3, 2016, he found a condom in a bathroom that the residents of the

rooming house used. He was confused because "nobody else in the house used

condoms."

      Defendant was suspicious because Hodge previously had been unfaithful

to him. He also was suspicious of Halley. He testified that on September 3,

2016, Halley said some things, which made defendant believe Hodge lied to him

when she said she did not know how the condom got in the bathroom.

      The prosecutor asked defendant to identify the last thing he remembered

before he woke up at the police station. He replied that he thought he had been

telling Halley not to say anything else, because there is always two sides to every

story. He did not recall the time of day when this happened.

      Defendant added that he was not "thinking of time at that point." He

recalled that early in the morning on September 3, 2016, he was in his room with

Hodge and Halley.      The prosecutor showed defendant photos of Halley's

wounds, and defendant denied he stabbed Halley.

      At the charge conference, defendant asked the judge to instruct the jury

on voluntary intoxication. The judge denied the application. The judge stated

that Hodge had not credibly testified about certain facts. The judge noted that

Hodge had feigned memory loss and fabricated facts about the drugs she had


                                                                           A-0069-17T2
                                       13
taken and the alcohol she had consumed. The judge also found defendant was

not credible when he testified that he blacked out during the incident.

      It appears that the judge became ill and was unable to continue with the

trial. Therefore, another judge charged the jury.

      The jury found defendant guilty on count one (aggravated assault of

Halley); not guilty of robbery, as charged in count two, but guilty of the lesser-

included offense of theft as to Halley; and guilty on counts three (criminal

restraint of Halley), four (terroristic threats to Halley), five (unlawful possession

of a weapon); and six (possession of a weapon for an unlawful purpose). The

jury also found defendant not guilty on counts seven (terroristic threats to

Hodge) and eight (criminal restraint of Hodge).

      The trial judge sentenced defendant on July 28, 2017, and thereafter

entered the JOC. This appeal followed.

      On appeal, defendant presents the following arguments:

             POINT I
             A NEW TRIAL SHOULD OCCUR BECAUSE THE
             COURT MISTAKENLY REFUSED TO CHARGE
             THE JURY ON VOLUNTARY INTOXICATION
             WHERE THE DEFENDANT TESTIFIED THAT HE
             HAD CONSUMED A LARGE QUANTITY OF
             INTOXICANTS AND HAD THEN BLACKED OUT
             DURING A BIZARRE OFFENSE. U.S. CONST.
             AMEND. XIV; N.J. CONST. ART. I, PARA. 1.


                                                                             A-0069-17T2
                                        14
            POINT II
            A NEW TRIAL SHOULD OCCUR BECAUSE THE
            JURY INSTRUCTIONS OMITTED AN ELEMENT
            FROM COUNT 2 AND ENTIRELY OMITTED
            COUNTS 3 AND 4. U.S. CONST. AMEND. XIV; N.J.
            CONST. ART. I, PARAS. 1, 9, 10. (Not raised below).

            POINT III
            THE      LESSER INCLUDED  OFFENSE    OF
            UNLAWFUL POSSESSION OF A KNIFE (COUNT 5)
            SHOULD MERGE INTO POSSESSION OF A KNIFE
            FOR AN UNLAWFUL PURPOSE (COUNT 6). (Not
            raised below).

            POINT IV
            A RESENTENCING SHOULD OCCUR BECAUSE
            THE COURT DID NOT CONSIDER MITIGATING
            FACTOR FOUR, EVEN THOUGH EVIDENCE
            SEEMED TO SUPPORT IT. (Not raised below).

                                      II.

      We first consider defendant's argument that the trial judge erred by

denying his request for an instruction on voluntary intoxication.    Defendant

contends that before he allegedly committed the charged offenses , he had

consumed a large quantity of intoxicants and then blacked out. He claims

sufficient evidence was presented at trial showing his faculties were so

prostrated that he could not have acted purposefully or knowingly.

      When an offense requires proof that a person act "purposely" or

"knowingly," evidence of "voluntary intoxication" may be admitted "to disprove


                                                                       A-0069-17T2
                                     15
the requisite mental state." State v. Cameron, 104 N.J. 42, 53 (1986). However,

the trial court is not required to submit the issue to a jury unless there is

sufficient proof that the intoxication caused a "prostration of the faculties" that

"puts the accused in such a state that he is incapable of forming an intention

from which he shall act." Id. at 54 (quoting State v. Treficanto, 106 N.J.L. 334,

352 (E. & A. 1929)).

      "[To] successfully invoke the defense, an accused must show that he was

so intoxicated that he did not have the intent to commit an offense. Such a state

of affairs will likely exist in very few cases." Ibid. (quoting State v. Stasio, 78

N.J. 467, 495 (1979) (Pashman, J., concurring and dissenting)). To qualify for

the defense of voluntary intoxication, "the intoxication must be of an extremely

high level." Ibid.

      In determining whether the intoxication results in a "prostration of

faculties," the trial court should consider:

            the quantity of intoxicant consumed, the period of time
            involved, the actor's conduct as perceived by others
            (what he said, how he said it, how he appeared, how he
            acted, how his coordination or lack thereof manifested
            itself), any odor of alcohol or other intoxicating
            substances, the results of any tests to determine blood-
            alcohol content, and the actor's ability to recall
            significant events.

            [Id. at 56.]

                                                                           A-0069-17T2
                                        16
      Here, the record supports the trial judge's determination that there was

insufficient evidence from which a jury could rationally find that because he had

consumed certain intoxicants, defendant's faculties were so prostrated that he

could not act purposely or knowingly when he committed the offenses. As we

stated previously, Halley testified that defendant had been drinking alcohol and

claimed to have consumed four grams of Molly. Defendant testified that he was

"high" when he arrived at his rooming house, and was "popping Molly" while

there. He also testified that he had been "smoking," but did not specify which

drug. Hodge and Halley testified, however, that they all were smoking PCP at

the rooming house.

      We note that testimony defendant ingested drugs and alcohol is not,

standing alone, sufficient to require an intoxication charge. Here, there was no

evidence as to the specific quantities of drugs defendant consumed other than

Halley's comment that defendant claimed he had ingested four grams of Molly.

Defendant apparently consumed Molly and PCP but did so over a period of

several hours.    Moreover, and most important, there was no testimony

explaining the effects Molly and PCP would have on the person consuming these

drugs.




                                                                         A-0069-17T2
                                      17
      We also note that defendant testified that he blacked out when he first

began to stab Halley. As the trial court pointed out, however, in denying the

application for an instruction on voluntary intoxication, defendant had "an

excellent memory" as to what had occurred before he began to stab Halley. He

recalled that he had become convinced that Hodge had not been faithful to him,

and had engaged in sexual relations with Halley.

      Furthermore, as recounted by Halley and Hodge, the events that formed

the basis for the charges took place over several hours. During that time,

defendant repeatedly stated that his intention was to bring Halley to "justice" for

violating him and Hodge. Defendant was never incapacitated. He checked

Halley's phone for evidence of Hodge's purported infidelity, kept Halley in the

room, and continued to threaten and torment Halley.

      We conclude the evidence regarding defendant's intoxication was

insufficient to support the conclusions that defendant did not act purposely and

knowingly when he repeatedly stabbed Halley, took his phone, threatened him,

and refused to let him leave the room. This, then, is not one of the rare cases in

which an instruction on voluntary intoxication is warranted.

      In support of his argument that the court erred by refusing to charge the

jury on voluntary intoxication, defendant cites State v. Nutter, 258 N.J. Super.


                                                                           A-0069-17T2
                                       18
41 (App. Div. 1992). In that case, the defendant was convicted of murder and

certain weapons offenses. Id. at 43. The defendant admitted he stabbed the

victim, who was the woman with whom he had been living at the time. Id. at

44. Witnesses testified that the defendant and the victim had argued, and they

were pushing and punching each other. Id. at 47.

      According to the witnesses, the defendant stabbed the victim in the right

side of her stomach. Id. at 48. The defendant thereafter turned off the lights,

stated that he was "blind," and said he would call the hospital but he never did.

Ibid. The defendant fell asleep on the floor, and several days later, stuffed the

victim's body in a closet. Ibid.

      The victim's daughter testified that the defendant and her mother had been

drinking earlier on the day the stabbing occurred. Ibid. After the police found

the body, an officer spoke to the defendant and he admitted killing the victim.

Id. at 50. He told the police he was drunk at the time, and he had consumed a

"half of a fifth of Mad Dog 20/20 and a six pack of beer." Id. at 51. He said

that "something just snapped in [his] head." Ibid.

      We reversed the defendant's convictions because the victim's children had

been allowed to testify on closed-circuit television, which was not permitted by

statute. Id. at 53-58. We remanded the matter for a new trial, and noted that on


                                                                         A-0069-17T2
                                      19
remand, the trial court should "carefully assess the evidence adduced in light of

[the] defendant's claimed entitlement to an instruction on . . . intoxication." Id.

at 58.

         We observed that the evidence presented at trial showed a "fight fueled by

alcohol," and that the stabbing had not been pre-planned. Id. at 59. There also

was evidence of a "single stab wound," and a claim by the defendant that he

"snapped." Ibid. We noted that there was evidence "of significant alcohol use,"

as well as evidence that the defendant engaged in certain "bizarre" actions and

had memory loss. Ibid. We concluded that there was "a jury question as to

whether [the] defendant's faculties were so prostrated that he was incapable of

forming an intent to commit the crime of murder."           Ibid. (citing State v.

Mauricio, 117 N.J. 402, 418 (1990)).

         In our view, defendant's reliance on Nutter is misplaced. In Nutter, there

was specific testimony as to the amount of liquor the defendant consumed, while

the evidence in this case primarily consists only of general statements as to

defendant's consumption of alcohol and drugs. In Nutter, there was a single stab

wound, while in this case, there is evidence that defendant stabbed Halley nine

times, over a period of several hours.




                                                                           A-0069-17T2
                                         20
      Although defendant claimed he blacked out when he first stabbed Halley,

the evidence shows that thereafter defendant held Halley in the room for hours,

threatened him, checked his phone, and stabbed him several more times. These

actions negated any rational inference that defendant's faculties were so

prostrated that he was not capable of committing the offenses for which he was

charged purposefully or knowingly.

      We therefore conclude the trial judge did not err by refusing to charge the

jury with voluntary intoxication.

                                       III.

      Next, defendant argues, for the first time on appeal, that the trial court

erred by omitting an element in the instructions on theft, as a lesser-included

offense of robbery. In addition, defendant argues that the court erred by failing

to charge the jury on counts three and four, in which defendant was charged with

criminal restraint and making terroristic threats, respectively.

      Jury instructions should serve as a "road map to guide the jury" in its

deliberations, State v. Martin, 119 N.J. 2, 15 (1990), and provide an accurate,

"comprehensible explanation of the questions that [it] must determine, including

the law of the case applicable to the facts that [it] may find," State v. Green, 86

N.J. 281, 287-88 (1981). Jury instructions must address every element of the


                                                                           A-0069-17T2
                                       21
offense. State v. Vick, 117 N.J. 288, 291 (1989).

      Where, as in this case, the defendant does not raise a timely objection to

an error in the jury charge, we review the instruction under a plain-error

standard. State v. Afanador, 151 N.J. 41, 54 (1997). Reversal is warranted only

where the error, considered in the context of the charge as a whole,

"prejudicially affect[s] the substantial rights of the defendant suffici ently

grievous[ly] 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. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526,

538 (1969)).

      Here, the court instructed the jury on theft and stated that a person is guilty

of this offense

             if he unlawfully takes or exercises unlawful control
             over movable property of another with purpose to - - to
             deprive him thereof. The State must prove each of the
             following elements beyond a reasonable doubt: [(1)]
             that defendant knowingly took or unlawfully exercised
             control over movable property; (2) that the movable
             property was property of another; [and] (3) the
             defendant's purpose was to deprive the other person of
             the movable property.

      The court did not instruct the jury on the "from the person" element of the

offense. See N.J.S.A. 2C:20-2(b)(2)(d). To establish this element, the State


                                                                             A-0069-17T2
                                        22
"must prove that at the time of the theft, the property stolen was within the

immediate custody and control of another." Model Jury Charges (Criminal),

"Theft from the Person (N.J.S.A. 2C:20-2(b)(2)(d))" (approved Apr. 15, 2014).

      The court's failure to instruct the jury on this element was not, however,

an error "clearly capable of producing an unjust result." R. 2:10-2. At trial,

Halley testified that he was in possession of a cell phone, and defendant took

the phone from him to check it for evidence that Halley and Hodge were having

a relationship. Halley's testimony regarding his possession of the phone was

unrebutted.

      Furthermore, the verdict sheet asked the jury whether the State had proven

that defendant "did unlawfully take, or exercise unlawful control over, the

movable property, from the person of David Halley, with the purpose to deprive

him thereof, . . ." We recognize that "[a] verdict sheet is intended for recordation

of the jury's verdict and [it] is not designed to supplement oral jury instructions."

State v. Gandhi, 201 N.J. 161, 196 (2010) (citations omitted).

      Even so, the verdict sheet in this case informed the jury that to find

defendant guilty of theft, it had to find defendant took movable property "from

the person of David Halley." It was abundantly clear that to show defendant

was guilty of theft, the State had to prove beyond a reasonable doubt that Halley


                                                                             A-0069-17T2
                                        23
had been in possession of the cell phone, and defendant took the phone from his

"person." Therefore, the court's failure to explain the "from the person" element

of the offense was not an error "clearly capable of producing an unjust result."

R. 2:10-2.

      Defendant also argues that the court's failure to instruct the jury on count

four requires reversal of his conviction of that offense. We disagree. In count

four, defendant was charged under N.J.S.A. 2C:12-3(b), with making terroristic

threats against Halley. However, in count seven, defendant also was charged

under N.J.S.A. 2C:12-3(b) with making terroristic threats to Hodge. The record

shows that the court instructed the jury on the elements the State had to prove

for the jury to find defendant guilty of the offense as to Hodge. The court's

failure to read the same instruction regarding the charge pertaining to the threats

against Halley was harmless error.

      Defendant further argues that his conviction on count three should be

reversed because the court failed to instruct the jury on this count. We agree.

As stated previously, in count three, defendant was charged under N.J.S.A.

2C:13-2(a) with criminal restraint of Halley in circumstances exposing him to

the risk of serious bodily injury.




                                                                           A-0069-17T2
                                       24
      In charging the jury on count eight, in which defendant was charged with

the criminal restraint of Hodge, the judge stated that the counsel had agreed he

need not repeat the instructions on criminal restraint, because he had already

addressed them with regard to count three. The record shows, however, that the

judge never read the instructions on count three. 6

      The model jury instructions for criminal restraint state that the elements

of the offense are: (1) defendant knowingly restrained the victim; (2) defendant

knew the restraint was unlawful; and (3) the restraint was under circumstances

in which the defendant knowingly exposed the victim to the risk of serious

bodily injury.    See Model Jury Charges (Criminal), "Criminal Restraint

(N.J.S.A. 2C13-2a)" (rev. June 19, 2000). The model charge defines the terms

"restraint," "unlawful," "serious bodily injury," and the mental state

"knowingly." Ibid.

      Here, the judge had instructed the jury on the meaning of the terms

"serious bodily injury" and "knowingly" in the charge on aggravated assault.


6
   We note that in count eight, defendant was charged with criminal restraint
under N.J.S.A. 2C:13-2(b) by holding Hodge in a condition of involuntary
servitude, not criminal restraint under N.J.S.A. 2C:13-2(a), as charged in count
three. The section of the verdict sheet pertaining to count eight referred to
N.J.S.A. 2C:13-2(b), but erroneously stated that the offense involved the
unlawful restraint of Hodge in circumstances placing her at risk of serious bodily
injury. In any event, the jury was never instructed on either count three or eight.
                                                                           A-0069-17T2
                                       25
The judge did not, however, instruct the jury on the meaning of the terms

"unlawful" and "restraint." We conclude that in the absence of specific

instructions on those elements of criminal restraint, the jury did not have the

"road map" it required for its deliberations on this offense. Martin, 119 N.J. at

15.

      We therefore affirm defendant's convictions on counts two and four, but

reverse his conviction on count three and remand for a new trial on that count.

                                      IV.

      Defendant presents several arguments regarding his sentence.             At

sentencing, the trial judge found aggravating factors one, N.J.S.A. 2C:44-1(a)(1)

(nature and circumstances of the offense, including whether the offense was

committed in "an especially heinous, cruel, or depraved manner"); two, N.J.S.A.

2C:44-1(a)(2) (gravity and seriousness of the harm inflicted on the victim);

three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense);

six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the

seriousness of the offenses of which he has been convicted); and nine, N.J.S.A.

2C:44-1(a)(9) (need to deter defendant and others from violating the law). The

judge found no mitigating factors.




                                                                         A-0069-17T2
                                      26
      The judge sentenced defendant to ten years of incarceration on count one

(aggravated assault), with an eighty-five percent period of parole ineligibility,

pursuant to NERA. The judge also imposed concurrent five-year custodial

sentences on counts two, three, four, and six; and an eighteen-month prison term

on count five.

      "An appellate court's review of a sentencing court's imposition of sentence

is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318

(2018). In reviewing a sentence, the court must determine whether: "(1) the

sentencing guidelines were violated; (2) the findings of aggravating and

mitigating factors were . . . 'based upon competent credible evidence in the

record;' [and] (3) 'the application of the guidelines to the facts' of the case

'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014)

(third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

      "An appellate court is bound to affirm a sentence, even if it would have

arrived at a different result, as long as the trial court properly identifies and

balances aggravating and mitigating factors that are supported by competent

credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989)

(citing State v. Jarbath, 114 N.J. 394, 400-01 (1989); Roth, 95 N.J. at 364-65).




                                                                           A-0069-17T2
                                       27
      Defendant argues that count five (unlawful possession of a weapon)

should merge with count six (possession of a weapon for an unlawful purpose).

The State agrees with defendant's argument. See State v. Jones, 213 N.J. Super.

562, 568 (App. Div. 1986). Furthermore, as the State acknowledges, because

there was no evidence that defendant possessed the knife for any purpose other

than to assault Halley, count six should merge with count one (aggravated

assault). See State v. Tate, 216, 300, 303 (2013).

      Defendant also argues that the judge erred by failing to find mitigating

factor four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or

justify defendant's conduct, though failing to establish a defense).             At

sentencing, defense counsel did not raise this argument. He now argues there is

sufficient evidence in the record to support the finding of mitigating factor four.

      Defendant notes that the presentence report states that he reported he had

an injury to his head several years earlier, and that his mental health had not

been "too good." Defendant also reported that since he sustained that injury, he

had not been "thinking straight." In addition, at sentencing, defendant's mother

told the judge that defendant changed when he hit his head. She also cited the

drugs defendant had been taking, which she said "just drove him insane."




                                                                           A-0069-17T2
                                       28
      We are convinced there is insufficient evidence in the record to support a

finding of mitigating factor four. Defendant presented no evidence to support

the claim that his head injury affected his cognitive abilities on the day he

committed the offenses. Furthermore, defendant's claim that he was intoxicated

when he committed the offenses does not excuse or justify his conduct.

      Accordingly, we affirm defendant's convictions on counts one, two, four,

five, and six; and the sentences imposed on counts one, two, and four. We

remand the matter to the trial court for entry of an amended JOC, merging counts

five and six with count one. We note that the JOC dated August 3, 2017,

mistakenly states that defendant had been charged with and found guilty of theft

under N.J.S.A. 2C:20-3(a). The correct cite is N.J.S.A. 2C:20-2(b)(2)(d).

      We also reverse defendant's conviction on count three and remand the

matter for a new trial on that charge. If defendant is tried again on count three

and found guilty, the trial court shall resentence defendant on all counts, after

merger of counts five and six with count one.

      Affirmed in part, reversed in part, and remanded to the trial court for entry

of an amended JOC and further proceedings. We do not retain jurisdiction.




                                                                           A-0069-17T2
                                       29
