                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-0768-13T2

STATE OF NEW JERSEY,
                                     APPROVED FOR PUBLICATION
         Plaintiff-Respondent,          January 25, 2016

    v.                                 APPELLATE DIVISION

VICTOR GONZALEZ,

          Defendant-Appellant.
_____________________________________________________

         Argued October 27, 2015 – Decided January 25, 2016

         Before Judges Fisher, Rothstadt and Currier.

         On appeal from the Superior Court of New
         Jersey,   Law   Division,  Camden County,
         Indictment No. 12-02-0465.

         Michele E. Friedman, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph   E.   Krakora,   Public   Defender,
         attorney; Ms. Friedman, of counsel and on
         the brief).

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

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    Defendant was convicted of robbery and aggravated assault,

among other things, and sentenced to an aggregate nineteen-year
prison term.          In appealing, defendant argues in part that the

jury instructions were ambiguous in certain critical respects,

resulting from the judge's repeated use of the phrase "and/or"

when describing many of the issues the jury was obligated to

decide.      Notwithstanding defendant's failure to object at trial,

we   agree      the   judge's   instructions     were   clearly     capable      of

producing an unjust result and, therefore, reverse and remand

for a new trial.

      The jury heard evidence that, on June 28, 2011, defendant

Victor Gonzalez was present when Marcus Zayas robbed and then

shot Brian Arnold in the parking lot of what was referred to at

trial as "the soap factory," a building located on Essex Street

in Gloucester City. The State asserted that Gonzalez conspired

with Zayas and Adrian Aponte to rob and then assault Arnold.

Zayas — who, prior to this trial, pleaded guilty to attempted

murder    and    conspiracy     to   commit   robbery   as   a   result   of    his

involvement — testified that on the evening in question, Aponte

called Arnold, and told him that Zayas, Aponte, and defendant

wanted to purchase drugs from Arnold that night.                   According to

Zayas, shortly after arriving at the soap factory, defendant and

Aponte told him how the robbery was going to occur: Zayas was to

remain behind a dumpster, while Aponte and defendant stood on a

nearby loading dock, and, after a whistle from either Aponte or




                                         2                                A-0768-13T2
defendant, Zayas was to emerge with his face covered and with a

.38 caliber handgun, which defendant provided, rob in sequential

order defendant, Arnold, and Aponte.

      Arnold arrived, and the drug transaction occurred. Zayas

testified      that    after      hearing    two    whistles,      he    emerged       from

behind the dumpster, walked up, pointed the gun at Arnold, and

told Arnold to give him the drugs.                  Arnold, however, grabbed the

gun and as the two "wrestl[ed]" with it, a shot was fired.

According to Zayas, he turned to Aponte and defendant, and asked

what he should do. As directed by Aponte, Zayas shot Arnold as

he   ran    off.      Arnold     was    struck      by    a   bullet     when     he    was

approximately         six   to    seven     yards    away;     Zayas,      Aponte,      and

defendant left the soap factory and returned to Aponte's house.

      Defendant presented a different version. He testified that

on June 28 he attended a parade with Zayas, following which they

went to Aponte's house. Defendant denied discussing a robbery

with Aponte or Zayas there, but he acknowledged that Aponte

asked him if he wanted to go with Aponte and Zayas to rob

Arnold; defendant declined, but Aponte told him he had to join

in   because    defendant        owed   Aponte's         brother   money    and    Aponte

threatened      to     hurt      defendant's     grandmother        if     he   did     not

participate.




                                             3                                    A-0768-13T2
       According to defendant, Aponte gave him a gun and told him

to ride his bike to the soap factory, where Aponte and Zayas met

him.    It was defendant's understanding that Zayas was going to

rob defendant, then Aponte, and finally Arnold. Aponte called

Arnold using defendant's cell phone to tell him they were at the

soap factory. After Arnold arrived, Aponte bought marijuana from

him.     Following   the exchange, Zayas emerged from behind the

dumpster    and,   according   to    defendant,   walked   up   to   Arnold,

"pointed the gun [at him,] and said give me all your stuff."

Arnold and Zayas then wrestled with the gun for a short while.

Aponte told Zayas to shoot Arnold, and Zayas fired two shots.

After the second shot, defendant saw Arnold "crawling" away on

all fours. Defendant took the gun from Zayas and returned to

Aponte's house where he threw the gun under the backyard deck.

       Arnold was able to get to a liquor store approximately one

block from the soap factory. Police were called and an ambulance

summoned.

       Based on statements Arnold gave the day after the shooting,

a detective was able to identify one of the actors as Zayas.

The detective obtained a statement from Zayas, from which he was

able to identify Aponte and defendant as the others involved.

       Defendant   was   charged    with:   first-degree   armed     robbery,

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




                                      4                              A-0768-13T2
N.J.S.A.        2C:5-2;     N.J.S.A.    2C:15-1;       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);           fourth-degree       aggravated

assault, N.J.S.A. 2C:12-1(b)(4); third-degree aggravated assault

N.J.S.A. 2C:12-1(b)(7); second-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful

possession        of      weapons,     N.J.S.A.        2C:39-5(b);     third-degree

endangering an injured victim, N.J.S.A. 2C:12-1.2; and third-

degree hindering apprehension or prosecution, N.J.S.A. 2C:29-

3(b)(1).        After the denial of his motion to suppress statements

made to police, defendant was tried over the course of seven

days and convicted on all counts.

     The trial judge denied defendant's motion for a new trial.

At sentencing on May 10, 2013, after merging                         the aggravated

assault convictions, as well as the possession of a weapon for

an   unlawful          purpose     conviction      with     the      armed    robbery

conviction, the judge imposed the following concurrent prison

terms: fifteen years for the armed robbery conviction; seven

years     for    the    conspiracy     conviction;1       seven    years     for    the

aggravated       assault     conviction;       seven    years    for   the   unlawful

weapons     possession           conviction;     and      four    years      for    the

1
  These first three prison terms were also subject to an eighty-
five percent period of parole ineligibility pursuant to the No
Early Release Act, N.J.S.A. 2C:43-7.2.



                                           5                                  A-0768-13T2
endangering   conviction.   The   judge   also   imposed   a   consecutive

four-year prison term on the hindering conviction.

    Defendant appeals, arguing:

         I. NUMEROUS CHARGE ERRORS DEPRIVED GONZALEZ
         OF HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL
         (Not Raised Below).

                A. The Jury Instructions Erro-
                neously Indicated that Gonzalez
                Could be Found Guilty of All of
                the Offenses Committed by Zayas if
                Gonzalez was a Co-Conspirator or
                Accomplice   to  Robbery  "and/or"
                Aggravated Assault.

                B. When Re-Charging the Jury, the
                [The Trial Judge Stated] that
                Gonzalez Could be Found Guilty of
                a Knowing or Reckless Attempt – A
                Legal Impossibility.

                C. The Instructions Failed to
                Proscribe the Jury from Inferring
                Gonzalez's Guilt Based Upon the
                Issuance of an Arrest Warrant and
                His Ensuing Incarceration.

                D. The Trial Court Charged the
                Jury With the Incorrect Lesser-
                Included Offense.

                E. The Cumulative Effect of the
                Charge Errors Constitutes Plain
                Error Warranting Reversal.

         II. THE TRIAL COURT COMMITTED REVERSIBLE
         ERROR IN DENYING THE MOTION FOR A JUDGMENT
         OF ACQUITTAL ON THE CHARGE OF ENDANGERING AN
         INJURED VICTIM.




                                   6                              A-0768-13T2
            III. THE STATEMENTS TO LAW ENFORCEMENT
            SHOULD HAVE BEEN SUPPRESSED BECAUSE GONZALEZ
            NEITHER VALIDLY WAIVED HIS MIRANDA[2] RIGHTS
            NOR   PROVIDED  THE   STATEMENT  VOLUNTARILY
            (Partially Raised Below).

            IV. THE CASE SHOULD BE REMANDED FOR RESEN-
            TENCING BECAUSE THE SENTENCE IMPOSED BY THE
            LOWER COURT IS MANIFESTLY EXCESSIVE.

                  A. The Sentencing Court Improperly
                  Found Aggravating Factors Three
                  and Nine.

                  B. The Sentencing Court Neglected
                  to   Consider   Mitigating  Factor
                  Eleven and Gonzalez's Status as a
                  Youthful Offender.

                  C. The Sentence Should Be Reduced
                  Given   NERA's Real-Time   Conse-
                  quences.

                  D. The Conspiracy Conviction Must
                  be Merged With the Conviction for
                  the Underlying Robbery Offense.

                  E.   The Sentencing Court Erred in
                  Imposing a Consecutive Sentence on
                  Count Eleven.

We agree with the thrust of Point I that, because the jury

instructions      were     hopelessly       ambiguous       and    erroneous         in

important    respects,      defendant       is   entitled    to    a    new     trial.

Because we mandate a new trial, we need not reach Points II and

IV,   and   we   find    insufficient   merit      in   Point     III   to    require

discussion in a written opinion, R. 2:11-3(e)(2).

2
 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).



                                        7                                     A-0768-13T2
      We turn first to the consequence of the judge's repeated

use of the phrase "and/or" in the course of her jury charge.

Following that, we will discuss defendant's argument that, after

properly charging the jury as to the state of mind necessary for

second-degree aggravated assault, the judge gave — in response

to an inquiry from the jury — erroneous instructions on this

same point.

                                        I

      Defendant asserts that the jury instructions issued at the

trial's conclusion "were permeated with error" and these errors

deprived defendant of his fundamental right to a fair trial as

guaranteed by the Fifth, Sixth and Fourteenth Amendments of the

United States Constitution, as well as the corresponding rights

contained in our own state constitution.                The State not only

substantively responds to the claims of error but also presents

for   our    consideration     the   additional     obstacle   that   defendant

failed to make these arguments at trial.

      Pursuant to Rule 2:10-2, arguments not presented at trial

are reviewed under the plain error standard, State v. Wakefield,

190 N.J. 397, 473 (2007), which prevents appellate courts from

reversing unless the error was "clearly capable of producing an

unjust      result,"   State   v.    Burns,   192   N.J.   312,   341   (2007).

Defendant's contentions, however, relate to jury instructions,




                                        8                               A-0768-13T2
which play a critical role in                    criminal prosecutions, to the

extent      that     it   has     been       well-established            that     erroneous

instructions "are poor candidates for rehabilitation under the

harmless error philosophy." State v. Simon, 79 N.J. 191, 206

(1979); see also State v. Maloney, 216 N.J. 91, 105 (2013);

State v. Rhett, 127 N.J. 3, 7 (1992); State v. Weeks, 107 N.J.

396, 410 (1987).            Of course, in reviewing any claim of error

relating to a jury charge, the "charge must be read as a whole

in determining whether there was any error", State v. Torres,

183 N.J. 554, 564 (2005), and the effect of any error must be

considered "in light of the overall strength of the State's

case,"    State      v.   Walker,      203      N.J.   73,    90     (2010)       (internal

quotation marks omitted).              In applying these principles, we find

the judge's repeated use of the phrase "and/or" — in defining

what the jury was obligated to determine — so confusing and

misleading as to engender great doubt about whether the jury was

unanimous     with    respect     to     some     part   or    all    aspects          of   its

verdict or whether the jury may have convicted defendant by

finding     the    presence       of     less     than   all       the     elements         the

prosecution was required to prove.

                                             A

      The imprecision of the phrase "and/or" and criticism for

its   use    here     and    in     other        jurisdictions       has        been    well-




                                             9                                     A-0768-13T2
documented.       In Fisher v. Healy's Special Tours Inc., 121 N.J.L.

198, 199 (E. & A. 1938), our State's highest court at the time

described       "and/or"          as    an     expression          that      "has    never    been

accredited in this state as good pleading or proper to form part

of a judgment record . . . ."                        Other courts have been even more

critical,       referring          to    "and/or"          as     a     "verbal      monstrosity,

neither word nor phrase," Employers' Mut. Liab. Ins. Co. v.

Tollefsen,      263        N.W.    376,        377       (Wis.    1935),       an    "inexcusable

barbarism[] . . . sired by indolence," Cochrane v. Florida E.

Coast    R.     Co.,       145     So.       217,        218    (Fla.     1932),     a   "mongrel

expression       .     .    .     an     equivocal             connective,      being     neither

positively conjunctive nor positively disjunctive," Holmes v.

Gross,    93    N.W.2d       714,        722    (Iowa          1958),    and    an   "abominable

invention," American Gen. Ins. Co. v. Webster, 118 S.W.2d 1082,

1084 (Tex. Civ. App. 1941).                     Wherever found in the decisions of

our courts, "and/or" has been recognized as creating ambiguity.

See Fisher, supra, 121 N.J.L. at 199 (finding ambiguity in a

civil    complaint         alleging          "Healy's          Incoporated      and/or    Healy's

Special Tours were the owners of a motor bus and operating the

same"); Howell v. Ohio Cas. Ins. Co., 130 N.J. Super. 350, 355

(App.    Div.    1974)       (finding          ambiguity          in    an   insurance       policy

describing the insured as "husband and/or wife"); In re Estate

of Massey, 317 N.J. Super. 302, 303 (Ch. Div. 1998) (finding




                                                    10                                   A-0768-13T2
ambiguity in a Will bequeathing one-third of the residue to "my

niece    .   .   .       and/or   [g]randniece");         The    Nat'l    State      Bank    of

Newark    v.     Morrison,        7   N.J.   Super.     333,     339    (Ch.    Div.    1949)

(finding ambiguity in a power of appointment of a trust given to

the settlor's "widow and/or nephews and nieces"); Ward v. Jersey

Cent.    Power       &    Light    Co.,   136    N.J.     Eq.    181,    182    (Ch.    1945)

(finding ambiguity in a request reforming a stock certification

in favor of "Celia 'and/or' Nora").

       We find no reason to take some different approach regarding

"and/or" here, particularly when considering the nature of the

present inquiry.            For example, in the cases cited above, the

courts were entitled to attempt to intuit the meaning of the

ambiguous statement through consideration of extrinsic evidence

or     application          of    accepted       canons     of    interpretation            and

construction.            Here, we have no insight into how the jury may

have    interpreted         each      "and/or"     that    appears       in    the   judge's

instructions.            There is no extrinsic evidence to examine and no

means for determining whether, with each utterance of "and/or,"

the jury was able to properly interpret it as "and" when the

judge should have said "and," and "or" when the judge should

have said "or." Moreover, we cannot forget that an individual's

liberty interests hung in the balance; we are not concerned here

with the disposition of the residue of an estate, Massey, supra,




                                              11                                     A-0768-13T2
317 N.J. Super. at 303, or the scope of insurance coverage,

Howell, supra, 130 N.J. Super. at 355, but with the question of

whether defendant was properly convicted and must now spend the

next nineteen years in prison.

                                       B

      In this case, "and/or" was used to describe those things

the   jury   was    required   to   find    to    convict     defendant   on    the

various counts charged. As observed, defendant does not deny his

presence     when    the   crimes    were        committed,    only   that      his

participation was the product of duress. In charging the jury

about the relationship of this theory to the State's proofs, the

judge gave the following instructions which we quote at length,

not to burden the reader, but to demonstrate we are not simply

harping on one or even a few stray or inconsequential uses of

"and/or":

             Count One of the indictment charges the
             defendant with the crimes of robbery and
             Counts Three, Four and Five charge the
             defendant with the crime of aggravated
             assault. The State does not allege that the
             defendant committed the crimes of robbery
             and/or aggravated assault personally, but,
             rather, that he is legally accountable for
             that crime even though it was committed by
             another.

             More specifically, the State alleges that
             the crimes of robbery and/or aggravated
             assault were committed by Marcus Zayas and
             that the defendant is legally accountable
             for the crimes of robbery and aggravated



                                      12                                  A-0768-13T2
assault committed by Marcus Zayas because
the defendant[], Adrian Aponte and Marcus
Zayas, allegedly conspired . . . to commit
those crimes.

Now, I've already instructed you or given
you the law on both the crimes of robbery
and/or aggravated assault as well as the law
of conspiracy.

If you are satisfied beyond a reasonable
doubt that the State has proven all of these
essential elements and that Marcus Zayas
committed the crimes of robbery and/or
aggravated assault, you must go on to
determine the guilt or innocence of the
defendant for that same crime.

    . . . .

However, if you're not satisfied beyond a
reasonable doubt that Marcus Zayas committed
the crimes of robbery and/or aggravated
assault, then your inquiry ends here and you
must return a verdict of not guilty as to
the defendant.   Therefore, the instructions
given on conspiracy are only for your use if
you find beyond a reasonable doubt that
Marcus Zayas committed the crimes of robbery
and/or aggravated assault.

Our law provides that a person is guilty of
an offense if it is committed by his own
conduct or by the conduct of another person
for which he is legally accountable or both.

A person is legally accountable for the
conduct of another person when he is engaged
in a conspiracy with such other person and
the conduct is within the scope of the
conspiracy.   Thus, you must decide whether
the defendant engaged in the conspiracy with
Marcus Zayas and Adrian Aponte to commit the
crime of robbery and/or aggravated assault.




                     13                        A-0768-13T2
A person is guilty of conspiracy with
another person or persons if, with the
purpose of promoting or facilitating the
commission of a crime, he agrees with such
other person or persons that they or one or
more of them will engage in conduct which
constitutes such crime or an attempt or
solicitation to commit such crime or agrees
to aid such other person or persons in the
planning or commission of such crime or an
attempt or solicitation to commit such
crime.

Thus, . . . to find . . . that the defendant
engaged in a conspiracy with Marcus Zayas,
you must be satisfied beyond a reasonable
doubt of the following elements:

Number one, that the defendant agreed with
Marcus Zayas and Adrian Aponte.

And, number two, that when the defendant so
agreed with Marcus Zayas and Adrian Aponte,
the   defendant's   purpose,  meaning   his
conscious object, was to promote it or to
make it easier for Marcus Zayas to commit
the crimes of robbery and/or aggravated
assault.

In this case, after consideration of all the
evidence, if you find beyond a reasonable
doubt that Marcus Zayas committed the crimes
of robbery and/or aggravated assault and
also that the defendant conspired with
Marcus Zayas and Adrian Aponte to commit
those crimes, you must find defendant guilty
of the crimes of robbery and/or aggravated
assault.

On the other hand, if you have reasonable
doubt that Marcus Zayas committed the crimes
of   robbery   and/or  assault,   that   the
defendant conspired with Marcus Zayas and
Adrian Aponte to commit those crimes or
both, you must find the defendant not
guilty.



                     14                        A-0768-13T2
         [Emphasis added.]

    A similarly-phrased instruction was provided as guidance

for the jury's consideration of accomplice liability:

         A person is an accomplice of another person
         in the commission of an offense if, with the
         purpose of promoting or facilitating the
         commission of the offense, he solicits such
         other person to commit it or aids or agrees
         or attempts to aid such other person in
         planning or committing it. . . .

         In this case, the State alleges that the
         defendant is equally guilty of the crimes
         committed by Marcus Zayas because he acted
         as an accomplice with the purpose that the
         specific crimes charged be committed.

         In order to find the defendant guilty of the
         specific crimes charged, the State must
         prove beyond a reasonable doubt each of the
         following elements:

         Number one, that Marcus Zayas committed the
         crimes of robbery and/or aggravated assault.

         I've already given you the definitions of
         robbery and aggravated assault for all three
         charges,   for   all  of   the  charges   of
         aggravated assault.

         That [defendant] solicited him to commit
         them and/or did aid or agree or attempt to
         aid in planning or committing them.

         That this defendant's purpose was to promote
         or   facilitate   the  commission   of   the
         offenses.

         That this defendant possessed a criminal
         state of mind that is required to be proved
         against the person who actually committed
         the criminal act.



                               15                       A-0768-13T2
    . . . .

If you find that the defendant, with a
purpose of promoting or facilitating the
commission of the offenses, solicited Marcus
Zayas to commit them and/or aided or agreed
or attempted to aid him in planning or
committing them, then you should consider
him as if he committed the crimes himself.

You must consider . . . each offense charged
separate from this accomplice charge.

    . . . .

In sum, in order to find the defendant
guilty of committing the crimes of robbery
and/or aggravated assault charges, the State
must prove each of the following elements
beyond a reasonable doubt:

Number one, that Marcus Zayas committed the
crimes of robbery and/or aggravated assault.

That this defendant solicited him to commit
them and/or did aid or agree or attempt to
aid him in planning or committing them.

That this defendant's purpose was to promote
or   facilitate   the  commission   of   the
offenses.

That this defendant possessed the criminal
state of mind that is required to be proved
against the person who actually committed
the criminal act.

Again, I instruct each of you [that] you
must   consider   the   accomplice   charge
separately as to each charge of robbery and
. . . the different charges for aggravated
assault.

If you find that the State has proven each
one of the elements as described above



                     16                        A-0768-13T2
               beyond a reasonable doubt, you must find the
               defendant    guilty   of    robbery   and/or
               aggravated assault.

               If, on the other hand, you find that the
               State has failed to prove one or more of
               these elements beyond a reasonable doubt,
               you must find the defendant not guilty or
               robbery and/or aggravated assault.

               [Emphasis added.]

       The repeated use of the offending phrase rendered these

instructions ambiguous.           Even if we could somehow assume that,

in navigating these instructions, the jury accurately guessed

when "and/or" should have been "and" and when "and/or" should

have    been    "or"    or,    even,    when    "and/or"        meant   both,     as    in

"robbery or aggravated assault or both," we are further struck

by the spectre of a verdict that may have lacked unanimity or

may    have    lacked   a     finding   on     one   or    more    elements     of     the

offenses for which defendant was convicted.

                                          C

       In considering the possibility that the verdict was the

product of less than unanimous findings by the jury, we observe

that the nature of the indictment required that the jury decide

whether   defendant         conspired   in     or    was   an    accomplice     in     the

commission of a robbery, or an aggravated assault, or both.                             By

joining (or disjoining) those considerations with "and/or" the

judge conveyed to the jury that it could find defendant guilty




                                          17                                    A-0768-13T2
of either substantive offense — which is accurate — but left

open the possibility that some jurors could have found defendant

conspired in or was an accomplice in the robbery but not the

assault, while other jurors could have found he conspired in or

was an accomplice in the assault but not the robbery. In short,

these instructions did not necessarily require that the jury

unanimously conclude that defendant conspired to commit or was

an accomplice in the same crime.              Such a verdict cannot stand.

See State v. Gentry, 183 N.J. 30, 32-33 (2005) (in reversing, on

the basis of Judge Coburn's dissent, 370 N.J. Super. 413, 425-28

(App. Div. 2004), the Court held that the defendant's robbery

conviction could not stand when the jury found use of force on

another but could not agree on which of two individuals the

force was used); see also State v. Frisby, 174 N.J. 583, 596

(2002); State v. Parker, 124 N.J. 628, 635 (1991), cert. denied,

503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992).

       The jury was also told that "to find the defendant guilty

of committing the crimes of robbery and/or aggravated assault

charges, the State must prove [among other things] that Marcus

Zayas    committed       the   crimes    of    robbery     and/or     aggravated

assault."       Assuming     the   "and/or"    in   this     instruction      was

interpreted as being a disjunctive, it is entirely possible the

jury    could     have     convicted    defendant   of     both     robbery   and




                                        18                              A-0768-13T2
aggravated assault even if it found Zayas committed only one of

those offenses, i.e., the jury was authorized, if it interpreted

"and/or" in this instance as "or," to find defendant guilty of

robbery because it was satisfied the State proved that Zayas

committed an aggravated assault.

      These and other possibilities militate in favor of a new

trial.

                                            D

      Clear and correct jury charges are essential for a fair

trial, and the failure to provide them may constitute plain

error. See State v. Maloney, 216 N.J. 91, 104-05 (2013); State

v. Green, 86 N.J. 281, 287 (1981).                    The repeated use of "and/or"

wrung    from   the    charge   any    clarity          it     might   have    otherwise

possessed.

      It   is   true   defendant      did       not    object    at    trial    to    these

instructions.        But, when viewed as a whole, Torres, supra, 183

N.J. at 564, and in light of the strength of the State's proofs,

Walker, supra, 203 N.J. at 90 — which greatly relied on the word

of Zayas, the admitted chief actor in these crimes — the jury

charge was clearly capable of producing an unjust result, Burns,

supra, 192 N.J. at 341. "Contradictory and inconsistent charges

are     inherently     inadequate      as        they        'create    a      reasonable

likelihood      that   a   juror   understood            the    instructions         in   an




                                        19                                       A-0768-13T2
unconstitutional manner.'"                  State v. Moore, 122 N.J. 420, 433

(1991) (quoting Francis v. Franklin, 471 U.S. 307, 323 n.8, 105

S. Ct. 1965, 1975 n.8, 85 L. Ed. 2d 344, 359 n.8 (1985)).

       Consequently,          not    even     the    most     generous       and      forgiving

harmless-error           philosophy           can     save        this       verdict.         The

instructions were inherently ambiguous because the judge failed

to explain in clear English what the jurors were required to

decide and, as a result, generated numerous ways in which the

jury   could      have    convicted          without     a    shared      vision       of    what

defendant        did,   Gentry,       supra,    183     N.J.      at   32,     or     convicted

defendant on some charges without finding all the elements were

proven beyond a reasonable doubt.

       To   be    sure,       the    criminal       judicial      system       asks    much    of

jurors;     the    length       of    jury     charges       in   many     multiple         count

prosecutions can be truly staggering.                        In addition, application

of   our    harmless-error           philosophy       often       leads    to    a    generous

interpretation of a jury's verdict; indeed, there is always a

danger — when a reviewing court excuses error because of the

weighty      evidence          of     guilt     —      that       we     are     essentially

"hypothesiz[ing]          a    guilty       verdict      that      was     never      in     fact

rendered,"        thereby       "violat[ing]          the     jury-trial         guarantee."

Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081-

82, 124 L. Ed. 2d 182, 189 (1993). Consequently, to affirm the




                                               20                                      A-0768-13T2
judgment       under   review,      we   must,    in   the    final     analysis,        be

satisfied not that we would find defendant guilty if we were to

weigh the same evidence, but that the jury — the arbiter of

guilt and innocence — actually found defendant guilty based on a

shared vision of the evidence and through the application of

clear and correct legal principles. Simon, supra, 79 N.J. at

206. We cannot confidently draw such a conclusion. The jury was

asked     to    determine    whether      defendant       conspired        or    was    an

accomplice       in    two   consecutive         but   separate       offenses         that

involved       application     of    discrete     legal      concepts      not     easily

grasped by laypersons in the best of circumstances.                         We do not

believe    the    jury   was     given    the    proper      tools    to   make     those

determinations due to the manner in which the judge outlined the

issues.

                                          II

     In his Point I(B), defendant argues the judge erred when

she instructed that defendant could be found guilty of second-

degree aggravated assault if the jury found he attempted to

knowingly or recklessly cause seriously bodily injury. We agree,

as does the State.3




3
  In its brief, the State argues that the judge correctly charged
the elements but later, in summarizing the charge, spoke
erroneously.



                                          21                                     A-0768-13T2
       The Legislature has declared that an individual may commit

second-degree      aggravated      assault,    as   charged     here,    by    either

attempting "to cause serious bodily injury to another" or by

"caus[ing]       such    injury     purposely       or   knowingly       or      under

circumstances manifesting extreme indifference to the value of

human   life     recklessly      causes    such     injury."     N.J.S.A.       2C:12-

1(b)(1).     To be convicted of an attempted aggravated assault,

the defendant must be shown to have "purposely" attempted to

cause    serious        bodily     injury.     N.J.S.A.        2C:5-1(a)(1).          An

individual "acts purposely with respect to the nature of his

conduct or as a result thereof if it his conscious object to

engage in conduct of that nature or to cause such a result."

N.J.S.A.     2C:2-2(b)(1).        "An   attempt     is   purposeful      not      only

because it is so defined by statute, but because one cannot

logically attempt to cause a particular result unless causing

that    result    is    one's     conscious    object,     the    distinguishing

feature of a purposeful mental state."               State v. McCoy, 116 N.J.

293, 304 (1989) (internal quotation marks omitted); State v.

McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986).

       For example, in Rhett, supra, 127 N.J. at 5-6, the Court

reversed   an     attempted      murder   conviction      where    the   jury       was

instructed that "'[a] person is guilty of an attempt to commit a

crime if . . . acting purposely or acting knowingly the person




                                          22                                  A-0768-13T2
purposely   engages       in   the     conduct          which    could    constitute         the

crime.'" The Court reasoned that "[t]he basic error is in the

instruction      that    defendant          may    be    found    guilty       if   he   acted

'knowingly,' when only a 'purposeful' intent will suffice"; that

"[a]n actor cannot intend an unintended result."                               Id. at 6, 7.

Despite    the   absence       of    an      objection,         the    Court     found   this

erroneous   instruction        to      be    "fatal"      and    reversed        defendant's

conviction.      Id. at 7.

    Here, the judge first correctly instructed the jury that

"[t]o find the defendant guilty of attempting to cause serious

bodily    injury    to    another,           the    State       must     prove      beyond    a

reasonable doubt that the defendant purposely attempted to cause

serious    bodily    injury       to    another"         (emphasis       added).         After

deliberations commenced, the jury sought clarification and the

judge    re-read    the    same      correct        instructions.         In     summarizing

those instructions, the judge then gave the following erroneous

charge:

            [t]he aggravated assault I've just read you
            involves serious bodily injury. The finding
            for it would be under two theories:

            Either the defendant caused serious bodily
            injury or attempted to cause serious bodily
            injury in considering the entire charge
            along with the requisite state of mind,
            which   was  purposely   or  knowingly   or
            recklessly.

            [Emphasis added.]



                                              23                                     A-0768-13T2
There     is       no     dispute      that   this      particular       instruction       was

erroneous. The State maintains, however, that the judge twice

provided       a        correct     instruction      regarding        the    mental     state

required for an attempt conviction.                       The State argues that the

judge's later mistaken comments were not intended to describe

the    mental       state      requirements      for     each    theory     of     aggravated

assault and, when viewed in light of the entire charge, Torres,

supra,     183          N.J.      at   564,   including         the    correct        earlier

instructions, and defendant's failure to object, the error does

not warrant the grant of a new trial. We disagree. Indeed, this

is the precise type of error found reversible in Rhett despite a

similar failure to object. 127 N.J. at 5, 7-8.                            And although it

is certainly true the judge gave earlier proper instructions on

this point, we cannot be confident that the jury did not rely on

the final instruction. Considering what is at stake, we cannot

find solace in the fact that the judge was correct two out of

three times in giving this instruction.                         See Cabana v. Bullock,

474 U.S. 376, 383 n.2, 106 S. Ct. 689, 695 n.2, 88 L. Ed. 2d

704,    714-15          n.2    (1986);   State     v.    Coyle,    119      N.J.    194,   241

(1990).




                                              24                                     A-0768-13T2
                                       III

    We   lastly   and    briefly       address    the    remaining       facets   of

defendant's   Point     I,     i.e.:    (a)   the       lack   of    instructions

regarding testimony of an arrest warrant or that defendant was

incarcerated; (b) the judge mistakenly instructed the jury on

the lesser-included offense of theft instead of attempted theft;

and (c) some or all four errors referred to in Point I had the

cumulative effect of depriving defendant of a fair trial.

    As to the first of these arguments, defendant refers to the

fact that the jury heard testimony from a detective about: his

investigation; how it led to his identification of defendant and

Aponte; the issuance of an arrest warrant for defendant; and

defendant's   arrest.        Counsel    did   not       object.     In   addition,

defendant volunteered, while being cross-examined, that he was

incarcerated for an extended period of time:

          Q. Have you had some time to go over [your
          custodial statement] leading up to the
          trial?

          A. Yes, ma'am.

          Q. Like, over a year, would you say?

          A. I wouldn't say a year.              I'd say 16 months
          when I was incarcerated.

No limiting instruction was sought then or later.

    Admissibility of evidence that an arrest warrant or search

warrant was issued in a case is not particularly clear. We have



                                        25                                 A-0768-13T2
recognized that evidence that a search warrant issued for a

defendant's     person         or    residence          is    highly       prejudicial,            see,

e.g., State v. Alvarez, 318 N.J. Super. 137, 147 (App. Div.

1999); State v. Milton, 255 N.J. Super. 514, 520 (App. Div.

1992), but we also later observed in State v. Williams, 404 N.J.

Super. 147, 167 (App. Div. 2008), which dealt with testimony

about an arrest warrant, that the Supreme Court likely viewed

the matter differently in State v. Marshall, 148 N.J. 89, 240,

cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88

(1997),     when    it       found    no     merit      in     the    argument       that         such

evidence     might       "influence          [a]       jury    to    assume       guilt,"          and

concluded    that       "a    properly          instructed      jury       will    not    presume

guilt based on the issuance of a search warrant."

      We    question         whether        —     had    defendant          objected          —     the

testimony in question ought to have been permitted here.                                           The

fact that defendant was the subject of an arrest warrant or that

he was incarcerated prior to trial had no particular relevance;

if   that   evidence         had     any    influence,         it    was    merely       to       cause

prejudice to defendant.                    If there was an objection, it seems

likely the judge would have realized that whatever probative

value   could      be    squeezed          from    those       facts       was    substantially

outweighed by the prejudicial impact.                         N.J.R.E. 403.




                                                  26                                      A-0768-13T2
     The fact remains, however, that defendant did not object.

Considering the problem only briefly surfaced here, we find no

prejudice of sufficient stature to warrant a new trial on this

particular ground. The better practice, despite the lack of an

objection, would have been — as suggested by Marshall, supra,

148 N.J. at 240 (holding that "a properly instructed jury" would

not be misled by reference to a search warrant) — for the judge

to sua sponte advise the jury that the issuance of an arrest

warrant or the fact that defendant had been incarcerated should

have played no role in their deliberations.4

     The   second   aspect   we   briefly   consider   is   defendant's

argument that the judge mistakenly charged theft as a lesser-

included offense of robbery, when, in fact, nothing was taken

from the victim; defendant argues the jury should have instead

been instructed on attempted theft. The State argues in response

that the alleged error was of no consequence because the jury

convicted defendant of robbery and was not required to consider

whether a lesser-included offense was committed. Both parties

are correct. The judge charged the wrong lesser-included offense

but that mistake had no bearing on the outcome.         We assume the

mistake will not be repeated when the case is retried.

4
  We assume that counsel and the trial court will be careful to
ensure that this type of information does not seep into the
record at the new trial we have mandated.



                                  27                           A-0768-13T2
      Defendant    lastly   argues        in   Point     I       that   the   cumulative

effect of the errors deprived him of a fair trial.                        See State v.

Weaver, 219 N.J. 131, 155 (2014) (recognizing that "[w]hen legal

errors      cumulatively   render     a    trial    unfair,         the   Constitution

requires a new trial"); State v. Orecchio, 16 N.J. 125, 134

(1954) (holding that "where any one of several errors assigned

would not in itself be sufficient to warrant a reversal, yet if

all of them taken together justify the conclusion that defendant

was not accorded a fair trial, it becomes the duty of this court

to reverse").

      We do not find that the brief mentions of an arrest warrant

and defendant's pretrial incarceration, and the mistaken lesser-

included-offense charge, were of sufficient magnitude — either

viewed separately or collectively — to warrant a new trial.                            We

also do not view these circumstances as adding weight to our

determination that the errors referred to in Sections I and II

of   this    opinion   compel   our       mandate   of       a    new   trial   in   this

matter.

      Reversed and remanded for a new trial.




                                          28                                    A-0768-13T2
