                        NOT FOR PUBLICATION WITHOUT THE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-0749-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

LUIS FLORES, a/k/a EDWIN
RIVERA,

     Defendant-Appellant.
__________________________________

              Submitted January 17, 2018 – Decided July 20, 2018

              Before Judges Carroll and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Indictment No.
              15-04-0223.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Michele E. Friedman, Assistant
              Deputy Public Defender, of counsel and on the
              briefs).

              Michael   H.   Robertson,   Somerset   County
              Prosecutor, attorney for respondent (Paul H.
              Heinzel, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     Defendant Luis Flores appeals from his September 20, 2016

judgment of conviction.      We affirm his convictions for robbery and

possession of a weapon for an unlawful purpose, but remand to

merge the latter into the former for sentencing purposes.

                                    I.

     The testimony at trial included the following.           On April 1,

2015, the owner of a grocery store in Bound Brook saw on the

surveillance monitor that defendant was taking items from the

shelves   and   stuffing    them   inside   his   clothing.    The     owner

approached defendant and told him to unzip his jacket.          Defendant

unzipped his outer jacket and said he did not have anything.              The

owner saw defendant was wearing a jacket underneath his outer

jacket and told him to unzip his inner jacket.

     When defendant partially unzipped his inner jacket, several

detergent boxes fell to the floor, and it appeared he had other

items near his waist.      The owner told defendant to pull its zipper

all the way down, but defendant refused.           The owner stood three

feet in front of defendant, blocked his exit, and told him to

return the items.

     Defendant pulled out a knife.          The open folding knife had a

two-and-a-half inch blade and was five inches long.            The owner

testified he was "very afraid" and in "fear for my life."



                                     2                               A-0749-16T1
     The owner pulled out his cellphone to call the police.

Defendant stepped forward, and stuck out his hand with the knife.1

He put the knife close to the owner's body, and grabbed his

cellphone.   The owner, fearing defendant might hurt or kill him,

retreated and allowed defendant to leave the store.

     As defendant left, he dropped cash inside and outside the

store.    He started picking up the cash, and handed the owner his

cellphone.    Defendant tried to re-enter the store to retrieve

cash.    The owner pushed him out and called for help.     A neighbor

came and together they pushed defendant to the ground and held him

and his hand holding the knife.       An officer arrived, grabbed the

knife from defendant's hand, and arrested him. The items defendant

took or tried to take from the store were worth over $150.

     In his statement to police, defendant admitted he put items

inside his jacket to steal them, and took out "a little" knife

"[f]or [the owner] to see it and get scared."      When asked if the

owner got scared, defendant responded "Well, yes.      Obviously."

     Defendant was convicted of first-degree robbery by putting

the owner in fear of immediate bodily injury while armed with,

using, or threatening the immediate use of a deadly weapon,



1
  At trial, the owner demonstrated what defendant had done, and
the trial court described that defendant "lunged toward the victim"
pointing the knife at him.

                                  3                           A-0749-16T1
N.J.S.A.   2C:15-1,   and   third-degree   possessing   a   weapon   for

unlawful purposes, N.J.S.A. 2C:39-4(d).

     Defendant appeals, raising the following points:

           POINT I – ERRONEOUS JURY INSTRUCTIONS DEPRIVED
           FLORES OF HIS RIGHT TO A FAIR TRIAL.
           (Partially Raised Below).

                A.    The Court Directed the Jury's
                      Verdict With Respect to an Essential
                      Element of the Robbery Charge.

                B.    During       its        Preliminary
                      Instructions, the Court Erroneously
                      Charged the Jury on Reasonable
                      Doubt.

                C.    The   Cumulative   Effect   of   the
                      Instructional    Errors     Warrants
                      Reversal.

           POINT II – THE TRIAL COURT COMMITTED
           REVERSIBLE ERROR WHEN ADVISING THE JURY TWICE
           THAT FLORES WOULD ONLY DECIDE WHETHER TO
           TESTIFY IN HIS DEFENSE AFTER SITTING AND
           LISTENING TO THE ENTIRETY OF THE PROSECUTION'S
           CASE. (Not Raised Below).

           POINT III – THE JURY'S UNFETTERED ACCESS TO
           FLORES'S TRANSLATED STATEMENT DEPRIVED HIM OF
           DUE PROCESS AND A FAIR TRIAL.     (Not Raised
           Below).

                                 II.

     Defendant first appeals the denial of his objection to a

sentence in the final jury charge.     The trial court gave the model

jury instructions on robbery, telling the jury it had to find that

defendant "threatened [the owner] with or purposely put him[] in


                                  4                             A-0749-16T1
fear of immediate bodily injury," and that he was alleged to have

"threatened the immediate use of a deadly weapon."    See Model Jury

Charge (Criminal), "Robbery In The First Degree (N.J.S.A. 2C:15-

1)" (rev. Sept. 10, 2012).    The court then told the jury:

            you must understand what's meant by deadly
            weapon. That's fairly easy. A deadly weapon
            is anything which in the manner it is used or
            intended to be used is known to be capable of
            producing death or — or serious bodily injury.
            And generally speaking a knife is known to be
            capable of producing death or serious bodily
            injury.

            Now, and that has to be accompanied by the
            manner in which it is used would lead the
            victim to believe it to be capable of
            producing death or serious bodily injury.

     After the court's charge, defense counsel objected that the

trial court added the "generally speaking" sentence.         The court

responded: "Well, I don't think anybody who's lived to adulthood

would dispute that a knife is capable of producing death or serious

bodily injury."

     We do not approve of the trial court's divergence from the

model instructions by adding the unnecessary "generally speaking"

sentence.    However, defendant was not prejudiced.      First, the

evidence showed that the knife, "in the manner it [wa]s used or

[wa]s intended to be used, [wa]s known to be capable of producing

death or serious bodily injury," and thus met the definition of a

"deadly weapon" in N.J.S.A. 2C:11-1(c).      Second, the court told

                                  5                            A-0749-16T1
the jury it could not convict unless it found that defendant used

the knife in a manner that was capable of producing death or

serious bodily injury, and that the victim believed it capable of

producing death or serious bodily injury.

     The evidence showed the manner the knife was used was both

known to be, and would lead the victim reasonably to believe it

was, capable of producing death or serious bodily injury.       When

the owner confronted defendant for stealing, defendant pulled out

an open folding knife, pointed the knife at the owner, and lunged

at him with the knife.     The knife had a two-and-one-half-inch

blade.   The owner testified he feared defendant was going to kill

him, and defendant admitted he intended to and did scare the owner.

     Moreover, the trial court required the jury to find that "the

manner in which it is used would lead the victim to believe it to

be capable of producing death or serious bodily injury."      Under

the statute and the model jury instructions, that is part of an

alternative way of finding that a device is a deadly weapon.     The

statute and model instruction define a deadly weapon as

           any   firearm   or  other   weapon,   device,
           instrument, material or substance, whether
           animate or inanimate, which in the manner it
           is used or is intended to be used, (1) is
           known to be capable of producing death or
           serious bodily injury or (2) which in the
           manner it is fashioned would lead the victim
           reasonably to believe it to be capable of
           producing death or serious bodily injury[.]

                                 6                          A-0749-16T1
             [N.J.S.A. 2C:11-1(c) (emphasis and numbers
             added); accord Model Jury Charge (Criminal),
             "Robbery In The First Degree".]

       This second alternative covers the use of objects "fashioned

by a creative robber into something that generates a reasonable

belief that it is or conceals a lethal weapon," such as pointing

"a finger in a pocket."         State v. Williams, 218 N.J. 576, 588

(2014).      However,   the    trial   court    did   not   treat   it    as    an

alternative or mention "fashioned."            Instead, the court told the

jury it could not convict defendant of first-degree robbery unless

it found both that defendant had a knife and that the manner in

which it was used would lead the victim to believe it to be capable

of producing death or serious bodily injury, which imposed on the

State a burden it did not have to carry under the "known to be"

alternative.     Again, we do not approve of the court's variance

from   the   model   charge.     Nonetheless,     the   court's     additional

requirement offset its earlier "generally speaking" sentence.

       Moreover, the trial court properly instructed the jury that

"to find the defendant was armed with a deadly weapon, the State

must prove that he . . . had the purpose to use it in a way that

is capable of producing death or serious bodily injury."                       See

Model Jury Charge (Criminal), "Robbery In The First Degree." Thus,

the court told the jury it could not convict defendant unless both


                                       7                                 A-0749-16T1
he had the purpose to use the knife in a way that was capable of

producing death or serious bodily injury, and that he used it in

a manner that led the victim to believe it was capable of producing

death or serious bodily injury.

     Under the definition of deadly weapon, the manner in which a

knife is used or intended to be used is crucial.      "[I]f the weapon

is not a firearm, but an object with legitimate uses, for example

a paperweight or a pair of scissors, its use or intended use will

determine whether it meets the deadly weapon standard."       State v.

Rolon, 199 N.J. 575, 583 (2009).       "Because the [folding] knife was

not per se a deadly weapon, the jury had to assess whether

defendant used it or intended to use it as such."          Id. at 586.

"If the jury believed defendant used or intended to use the knife

against the victim, the definition of deadly weapon was satisfied."

Ibid.

     Here, the evidence showed, and the jury necessarily found,

that defendant intended to use the open folding knife against the

owner by pointing it and lunging with it to put the owner in fear

of death or serious bodily injury.       Whether a "knife[] is regarded

as a deadly weapon is resolved by a 'contextual test.'       'If it is

used as a weapon, it is a [deadly] weapon.'"         State v. Burford,

163 N.J. 16, 20 (2000) (quoting Cannel, New Jersey Criminal Code

Annotated, comment 4 on N.J.S.A. 2C:39-5 (1999)).

                                   8                            A-0749-16T1
     In any event, we have no doubt that if the trial court had

properly read the model charge without the "generally speaking"

sentence, the jury would have found that defendant used the knife

in a manner "known to be capable of producing death or serious

bodily injury."    "Knives are commonly used in causing deaths and

serious bodily injuries."      State v. Munroe, 210 N.J. 429, 446

(2012).     A folding "knife, popularly known as a pocketknife,

penknife, or jackknife," may "be a lethal weapon." State v. Green,

62 N.J. 547, 560 (1973).2    By pointing the knife and lunging at a

victim, defendant used it in a manner known to be capable of

producing death or serious bodily injury.    The jury found that was

what defendant intended to do, and what the owner believed he was

doing.    Under these circumstances, it is clear beyond a reasonable

doubt that any rational juror would have found the folding knife

was a deadly weapon.     See United States v. Smith, 561 F.3d 934,

937-41 (9th Cir. 2009) (finding harmless that the court instructed

the jury to find if the defendant used a knife rather than

instructing it to determine if he used a dangerous weapon).



2
  See, e.g., State v. Walker, 694 S.E.2d 484, 493 (N.C. Ct. App.
2010) ("A pocketknife is also unquestionably capable of causing
serious bodily injury or death," including one "having a blade two
and a half inches long"); Commonwealth v. Duxbury, 674 A.2d 1116,
1118 n.4 (Pa. Super. Ct. 1996) ("There is no doubt that [a penknife
with a three-inch blade] is capable of producing death or serious
bodily injury").

                                  9                          A-0749-16T1
     This was not a situation where a defendant merely had a

folding knife in his pocket throughout the robbery, and "[t]here

was no evidence that defendant used or intended to use his pocket

knife during the course of the robbery. Nor did the victim himself

have knowledge of defendant's possession of the knife."   State v.

Riley, 306 N.J. Super. 141, 146 (App. Div. 1997).         In those

circumstances, we have held the unseen, unused knife was not a

deadly weapon.   Id. at 149; State v. Brown, 325 N.J. Super. 447,

454 (App. Div. 1999); see Rolon, 199 N.J. at 586 (ruling that if

the defendant "never used or intended to use the closed folding

knife that simply dropped out of her pocket onto the floor during

the scuffle, the definition of deadly weapon was not met").       By

contrast, the circumstances here showed defendant was using the

knife as a deadly weapon.

     Like our Supreme Court, we "remind our trial courts that,

insofar as consistent with and modified to meet the facts adduced

at trial, model jury charges should be followed and read in their

entirety to the jury."   State v. R.B., 183 N.J. 308, 325 (2005).

Nonetheless, to the extent [the trial court's divergences from the

model charge] were error, under the . . . facts of this case, we

do not find the charge so erroneous as to require reversal."

Estate of Kotsovska ex rel. Kotsovska v. Liebman, 221 N.J. 568,

596-97 (2015).    Here, the trial court's divergences were not

                               10                          A-0749-16T1
prejudicial and were not "clearly capable of producing an unjust

result."   R. 2:10-2.

     We recognize that "'"[a]ppropriate and proper charges are

essential for a fair trial."'"    State v. Baum, 224 N.J. 147, 158-

59 (2016) (alteration in original) (citations omitted).           "An

erroneous jury charge 'when the subject matter is fundamental and

essential or is substantially material'" is presumed prejudicial

and is a "'poor candidate[] for rehabilitation under the harmless

error [standard].'"     State v. Maloney, 216 N.J. 91, 104-05 (2013)

(citations omitted).     Nonetheless, "[u]nder that standard, there

must 'be "some degree of possibility that [an error] led to an

unjust result.   The possibility must be real, one sufficient to

raise a reasonable doubt as to whether [the error] led the jury

to a verdict it otherwise might not have reached."'"      Baum, 224

N.J. at 159 (citations omitted).       We do not see such a real

possibility here.

     Defendant does not claim that there was such a possibility.

Rather, he claims reversal is required because the "generally

speaking" sentence directed a verdict on an essential element of

first-degree robbery, namely that defendant was "armed with, or

use[d] or threaten[ed] the immediate use of a deadly weapon."

N.J.S.A. 2C:15-1(b).



                                  11                         A-0749-16T1
     However, the trial court did not direct a verdict.    The court

uttered the sentence in the course of instructing the jurors "in

order for you to determine whether the defendant was in possession

of or threatened the immediate use of a deadly weapon."    The court

made clear to the jurors: "In order for you . . . to find defendant

was armed with a deadly weapon, the State must prove . . . that

he possessed it and had immediate access to the weapon but also

had the purpose to use it in a way that is capable of producing

death or serious bodily injury."     The court instructed the jurors:

"If you find that the State . . . has not proven beyond a reasonable

doubt that the defendant was armed with or used or purposely

threatened the immediate use of a deadly weapon at the time of the

commission of the robbery, then you must find the defendant guilty

of simple [second-degree] robbery."

     The trial court merely stated that "generally speaking a

knife is known to be capable of producing death or serious bodily

injury."   "Generally speaking" means "in general."    The court left

for the jury the specific determinations whether defendant "had

the purpose to use it in a way that is capable of producing death

or serious bodily injury" and whether "the manner in which it was

used would lead the victim to believe it to be capable of producing

death or serious bodily injury."



                                12                            A-0749-16T1
      This case bears no resemblance to the cases defendant cites,

where judges directed a verdict.         In State v. Collier, 90 N.J. 117

(1982), the judge "direct[ed] the jury to return a verdict of

guilty on the charge of contributing to the delinquency of a

minor."    Id. at 121.        State v. Ragland, 105 N.J. 189 (1986),

addressed the "unique" situation where a defendant is tried first

for unlawful possession of a weapon and then in a bifurcated

proceeding for possession of a weapon by a convicted felon, where

the judge told the jury it had already found that the defendant

"was in possession of a sawed-off shotgun," even though the jury

was required "to consider anew the evidence previously admitted

[and] to disregard completely its prior verdict."           Id. at 192-95.

      In State v. Grenci, 197 N.J. 604 (2009), the court in a

burglary prosecution instructed the jury that "it's true with

regard to [two defendants] that they entered without license or

privilege to be" in the victim's apartment.            Id. at 621.     "That

instruction specifically advised the jury that, in the cases of

[the two defendants], both of whom were being tried in absentia,

one element of burglary had been proven[.]"             Id. at 622.      "The

court reinforced that mistake by explaining - without any mention

of [the two defendants] - that if '[the third defendant] entered

the   apartment   of   [the   victim]    at   [the   victim's]   implied    or



                                    13                               A-0749-16T1
expressed invitation,'" then "'[the third defendant] could not be

convicted of the crime of burglary.'"       Id. at 621-22.

     By   contrast,   the   "generally    speaking"   sentence   did   not

mention defendant, did not advise the jury it was "true" defendant

committed any element, and did not reinforce any such comment.

Rather, as set forth above, the trial court's other instructions

offset the "generally speaking" comment, and made plain that the

jury had to decide this element.         "Based on the totality of the

instructions, we are satisfied that the judge did not direct a

verdict on any element of the charges against defendant.         Thus, a

reversal is not warranted."     See State v. Wesner, 372 N.J. Super.

489, 495 (App. Div. 2004).3

     On appeal, defendant complains for the first time about the

trial court's comment regarding "what's meant by deadly weapon.

That's    fairly   easy."   That   comment,   while   unnecessary,     was

immediately followed by the correct definition: "A deadly weapon

is anything which in the manner it is used or intended to be used

is known to be capable of producing death . . . or serious bodily



3
 Indeed, even a refusal to submit an element to the jury is subject
to harmless-error analysis and can be harmless. Neder v. United
States, 527 U.S. 1, 4, 7-20 (1999); State v. Purnell, 161 N.J. 44,
63-64 (1999) (following Neder); Smith, 561 F.3d at 938 (following
Neder); see also State v. Camacho, 218 N.J. 533, 550-52 (2014)
(citing Neder and holding that even instructional errors "of
constitutional dimension" are subject to harmless-error analysis).

                                   14                             A-0749-16T1
injury."    See N.J.S.A. 2C:11-1(c).    Defendant has not shown the

comment was plain error "clearly capable of producing an unjust

result."   R. 2:10-2.

                               III.

     Defendant next challenges a portion of the trial court's

preliminary instructions to which he did not object at trial.

"[T]he failure to object to a jury instruction requires review

under the plain error standard."       State v. Wakefield, 190 N.J.

397, 473 (2007).   Defendant must demonstrate "'"legal impropriety

in the charge prejudicially affecting the substantial rights of

the defendant and sufficiently grievous to justify notice by the

reviewing court and to convince the court that of itself the error

possessed a clear capacity to bring about an unjust result."'"

Ibid. (citations omitted); see State v. Chew, 150 N.J. 30, 82

(1997).    To show such an effect, defendant must prove the error

was "clearly capable of producing an unjust result[.]"     R. 2:10-

2.   We must hew to that standard of review.

     On appeal, defendant complains for the first time about the

portion of the trial court's preliminary instructions after the

jury was sworn, addressing direct and circumstantial evidence:

                A conviction may be based on direct
           evidence   alone,   circumstantial   evidence
           alone, or a combination of circumstantial and
           direct evidence, provided, of course, that it
           convinces you of a defendant's guilt beyond a

                                15                          A-0749-16T1
            reasonable doubt.    Conversely, if direct or
            circumstantial evidence gives rise to a
            reasonable doubt in your minds as to the
            defendant's guilt, then the defendant must be
            found guilty. Therefore, both circumstantial
            and direct evidence should be scrutinize [sic]
            and evaluated carefully by you.

     Defendant now notes the "conversely" sentence should have the

word "not" before "guilty."      See Model Jury Charge (Criminal),

"Instructions After Jury Is Sworn" (rev. Oct. 15, 2012).4               The

absence of "not" went unnoticed by the trial court, the prosecutor,

or defendant's counsel, and thus may not have been noticed by the

jury.      "Defendant's failure to 'interpose a timely objection

constitutes strong evidence that the error belatedly raised here

was actually of no moment.'"         State v. Tierney, 356 N.J. Super.

468, 481 (App. Div. 2003) (citation omitted); see State v. Ingram,

196 N.J. 23, 42 (2008).     Because defendant did not object to the

instruction, "there is a presumption that the charge . . . was

unlikely to prejudice the defendant's case."        State v. Singleton,

211 N.J. 157, 182 (2012).

     Indeed, the structure of the paragraph and the "conversely"

sentence made its meaning clear.          After the trial court's first

sentence    said   "A   conviction    may   be   based"   on   direct    or

circumstantial evidence that "convinces you of defendant's guilt


4
  The court reporter has certified the transcript was accurate.
No audio recording is available.

                                     16                           A-0749-16T1
beyond a reasonable doubt," the court followed with "Conversely,

if direct or circumstantial evidence gives rise to a reasonable

doubt in your minds as to the defendant's guilt," leading to the

natural conclusion that the jury would have to find defendant not

guilty.    "Conversely" means "introducing a statement or idea which

reverses one that has just been made or referred to."                 New Oxford

American    Dictionary      381   (3d   ed.   2010).     That   was     how   the

"conversely" sentence was intended and apparently how it was

understood.

     In addition, our Supreme Court has "emphasized that '[t]he

alleged error is viewed in the totality of the entire charge, not

in isolation[.]'"      Wakefield, 190 N.J. at 473 (citation omitted).

Later in its opening instructions, the trial court gave a full

reasonable-doubt instruction, correctly telling the jury that:

defendant "is presumed to be innocent"; "unless each and every

essential    element   of    an   offense     charged   is   proved    beyond    a

reasonable doubt he must be found not guilty of that charge"; "[a]

reasonable doubt can arise from the evidence itself or from a lack

of evidence"; and if "you are not firmly convinced of Mr. Flores's

guilt, you must give him the benefit of the doubt and find him not

guilty."

     Moreover, the trial court's opening instructions told the

jurors to keep an open mind until they heard the final jury

                                        17                               A-0749-16T1
instructions.     In those final instructions, the court again gave

a full reasonable-doubt instruction, repeating the same correct

instructions that if the jury found a reasonable doubt they must

find defendant "not guilty."      The court also correctly instructed

the jury on direct and circumstantial evidence, reciting the

equivalent paragraph and giving the jury the correct law:

            A verdict of guilty may be based on direct
            evidence alone, circumstantial evidence alone
            or a combination of the two, provided, of
            course,   that it convinces you of the
            defendant's guilt beyond a reasonable doubt.
            The reverse is also true.     If by reason of
            direct evidence, circumstantial evidence, a
            combination of the two, or a lack of evidence
            it raises in your mind a reasonable doubt
            about the defendant's guilt, you must give him
            the benefit of the doubt and find him not
            guilty.

Thus, the court made clear that if the jurors found a reasonable

doubt based on direct evidence, circumstantial evidence, or the

lack of evidence, they had to find defendant "not guilty."

       Further, "'any finding of plain error depends on an evaluation

of the overall strength of the State's case.'"           Wakefield, 190

N.J.   at   473   (citation   omitted).   Here,   the   State   presented

testimony from the owner who witnessed and was the victim of the

charged robbery, the responding officer who saw the knife still

in defendant's hand and the stolen goods still in his clothes, the

officers who recovered the knife and goods, the detective to whom


                                   18                             A-0749-16T1
defendant    confessed,    his    confession,       the   knife,     and     other

witnesses    and    evidence.      The    State's     case   was    strong      and

essentially uncontradicted.

     Defendant cannot show plain error in light of the strength

of the State's case, his non-objection to the "conversely" sentence

in     the         preliminary       direct-and-circumstantial-evidence

instruction,   the    trial     court's   clear,      correct,     and   repeated

reasonable-doubt      instructions,       and   its     correct     direct-and-

circumstantial-evidence instruction in the final charge before the

jury deliberated.       He has not shown prejudice "'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.'"           Wakefield, 187 N.J. at 473-75

(finding no plain error from the omission of two sentences from

the reasonable doubt instruction).

     Rather, the lack of prejudice is shown by "'"the isolated

nature of the transgression and the fact that a correct definition

of the law on the same charge is found elsewhere in the court's

instructions."'"      Baum, 224 N.J. at 160 (citations omitted); see

State v. Docaj, 407 N.J. Super. 352, 370-71 (App. Div. 2009).                     In

State v. Burns, 192 N.J. 312 (2007), our Supreme Court found no

plain error where the judge omitted the word "not" from its

instruction about the defendant's relative who refused to answer

                                     19                                    A-0749-16T1
questions about the defendant at trial: "[T]he mere fact that Mr.

Young didn't answer the questions is [not] for your consideration

as to the existence of those facts."        Id. at 343.       The Court

emphasized that the judge elsewhere correctly informed the jury

"it should not draw any inference about facts contained in the

questions that the witness refused to answer."       Ibid.    The Court

also stressed "[t]he failure of either defendant or the State to

object to the inappropriate comment in the jury charge."            Ibid.

"[V]iewing the instructions as a whole, and in light of the

overwhelming evidence of defendant's guilt, the brief inadvertent

error in the instructions does not require a new trial."            Ibid.

The same is true here.

     Defendant   also    argues   the   cumulative   effect    of    the

instructional errors warrants reversal.     However, the omission of

one word in the "conversely" sentence in the preliminary direct-

and-circumstantial evidence instruction had no effect because it

went unnoticed and was corrected by the context and by the trial

court's repeated, correct instructions.     Moreover, the "generally

speaking" sentence in the final charge regarding first-degree

robbery was offset by the court's other instructions requiring the

jury essentially to make the required finding.       Neither sentence

resulted in prejudice.    The two sentences also had no cumulative

effect as they had nothing to do with one another and were

                                  20                            A-0749-16T1
separated by the entire trial.    "We are fully satisfied that, both

individually and collectively, any errors committed at trial were

not clearly capable of" producing an unjust result.    See State v.

Feaster, 156 N.J. 1, 85 (1998).

                                 IV.

     Defendant next challenges, for the first time, the trial

court's comments to the jury about the anticipated events before

the jury began deliberations. Defendant fails to show plain error.

     At the conclusion of the Thursday trial day, the trial court

gave the jury a "snapshot" of upcoming events "[j]ust for your

planning purposes":

          I am advised that the State has, perhaps, one
          more witness to put before you.    Okay.   At
          that point the State will rest. There will
          then be some legal issues I anticipate that I
          will have to discuss with counsel. Before I
          ask [defense counsel] and Mr. Flores as to
          whether they will present evidence for your
          consideration and ask if Mr. Flores will
          testify.   I'm not even allowed to ask that
          until the State has rested because yet again
          I tell you, the burden of proof is on the
          State. It never shifts.

Based on those events, the trial court told the jurors "I expect

that we may have this matter concluded on Monday but for jury

charge and summations," but its "expectation realistically" was

that the jurors would "have this case for your deliberations

Tuesday morning."


                                 21                          A-0749-16T1
     On Monday, after the State rested, the trial court again

advised the jury of upcoming events:

          I think I indicated last Thursday that I
          thought the State's case might wrap up today
          and indeed it has. At this point I have to
          have a discussion with [defense counsel] to
          determine or to ask him to advise me as to
          whether he intends to put evidence before you
          for your consideration. There are other legal
          matters that I need to discuss with the
          attorneys before we proceed with that.     And
          until the State rests I'm not even permitted,
          nor is it appropriate for me, to make inquiry
          of Mr. Flores as to whether he's going to
          testify, because as I remind you, and you have
          heard me say a number of times, he doesn't
          have to present evidence. He doesn't have to
          testify.   Okay.   But there is a procedural
          colloquy – excuse me — not a procedural, a
          subsequent colloquy discussion we have to have
          in that regard. So, that will probably take
          us to three o'clock. . . . So I'm inclined
          to excuse you now[.]

     The trial court then excused the jury for the day.    With the

jury absent, the court heard defendant's motion for a directed

verdict, held the colloquy with defense counsel and defendant

about whether defendant wanted to testify, and was told he would

not testify and the defense would rest.

     It is clear that in the two quoted paragraphs the trial court

was providing the jurors with a sequence of events to predict when

they would start deliberating and to explain why they were being

dismissed early.   The court referenced the colloquy about whether

defendant wished to testify because it was an event that would

                                22                          A-0749-16T1
affect the timing of trial to an uncertain extent because the

court could not know whether defendant would testify until the

State rested.

       The trial court's desire to advise the jurors of their

anticipated     schedule   was   understandable.       However,   it     was

unnecessary to describe for the jury events that properly occur

out of the jury's presence, such as the colloquy. The court should

have simply informed the jurors of their own schedule without

describing the colloquy, and needlessly triggering the need for

the cautionary instructions the court gave.

       Nonetheless, defendant was not prejudiced.        The trial court

gave   cautionary   instructions    that   defendant   "doesn't   have   to

present evidence.     He doesn't have to testify." and "the burden

of proof is on the State.        It never shifts."     Moreover, when the

jury returned on Tuesday, it learned defendant was not going to

testify when defense counsel agreed the defense had no "evidence

to present for the jury's consideration.       The defense would rest."

Further, the court properly charged the jury:

           as you know, Mr. Flores elected not to testify
           at this trial.    As I have told you before,
           that is his constitutional right to remain
           silent. You must not consider for any purpose
           in any manner at any time in arriving at your
           verdict the fact that Mr. Flores did not
           testify. That fact should not enter into your
           deliberations or discussions in any manner at
           any time.

                                    23                            A-0749-16T1
     Defendant    does   not   claim    the   trial   court's   scheduling

comments prejudiced him by referencing his right not to testify.

Instead, he asserts that the comments suggested he sought to tailor

his testimony because the court said he would not decide until

after the State rested.

     Defendant's argument is baseless.          First, the trial court's

statements "I'm not even allowed to ask that until the State has

rested" and "until the State rests I'm not even permitted, nor is

it appropriate for me, to make inquiry" implied the timing of the

inquiry was dictated by legal requirements, not by defendant.             We

have ruled a "[d]efendant is not obligated to give the State

advance notice of her intention to testify or not testify. . . .

until the State has rested," State v. Alston, 212 N.J. Super. 644,

648 (App. Div. 1986), and that a court may not require such advance

notice, In re Mandell, 250 N.J. Super. 125, 131 (App. Div. 1991).

     Second, defendant did not testify or present witnesses.              As

a result, there was no testimony the jury might view as tailored.

Thus, this case bears no relation to the cases defendant cites,

where the defendant testified and "the prosecutor suggested during

summation   [or   cross-examination]     that   defendant   tailored    his

testimony to meet the facts testified to by other witnesses."

State v. Daniels, 182 N.J. 80, 85, 98-99 (2004); see State v.


                                   24                              A-0749-16T1
Feal, 194 N.J. 293, 298 (2008).          Therefore, "we do not find that

plain error occurred."      See Feal, 194 N.J. at 313.

                                    V.

     Defendant next complains for the first time that the trial

court allowed the jury to take into the deliberations room the

translated transcript of his statement to police.            He fails to

show plain error.

     After defendant's arrest, he gave a statement in Spanish to

a detective also speaking in Spanish.          The statement was video-

recorded, and a translator viewed the DVD and prepared a written

transcript in English.      Defense counsel said he had "No objection"

when the transcript was admitted as an exhibit.

     The detective read the transcript to the jury.                Without

objection, the trial court gave copies of the transcript to the

jurors to read along, and stated: "since the statement is in

Spanish, the transcript itself has been entered into evidence.            So

you'll have the original copy with you in the jury deliberation

room when you begin that portion of your responsibilities."

     Just before summations, defense counsel and the prosecutor

stipulated   to   changes    in   the    transcript,   providing   English

translations of the Spanish phrases previously marked "inaudible."

Defense counsel read the stipulation to the jury, including: "The

State and the defendant do hereby agree and stipulate that the

                                    25                             A-0749-16T1
transcript of the statement of Luis Flores translated into English

should reflect the following changes.           The statement transcript

has been marked into evidence.        You'll get a copy of it."

     Generally, "[t]he jury may take into the jury room the

exhibits received in evidence[.]"           R. 1:8-8(a).     "The Rule does

not distinguish between testimonial evidence, such as statements

or depositions, and non-testimonial evidence."           State v. A.R., 213

N.J. 542, 560 (2013). Under the rule, it was perfectly appropriate

to allow the jury to consider the transcript during deliberations

because it had been admitted as an exhibit. See State v. DeBellis,

174 N.J. Super. 195, 199 (App. Div. 1980).

     By contrast, "video-recorded statements have been considered

a different type of exhibit."     A.R., 213 N.J. at 560.         Courts have

created "an exception to Rule 1:8-8(a)" under which "a trial court

should not permit a jury to have unrestricted access during

deliberations to the videotaped pretrial statements of witnesses."

State v. Weston, 222 N.J. 277, 289 (2015).

     The   cases   creating   this    exception       have   emphasized   the

differences   between   a     video       recording    and   a   transcript.

"'[V]ideotape evidence is unique' because it allows jurors to

observe the witness's demeanor while hearing the testimony." State

v. Burr, 195 N.J. 119, 133 (2008) (quoting State v. Michaels, 264

N.J. Super. 579, 643 (App. Div. 1993), aff'd on other grounds, 136

                                     26                              A-0749-16T1
N.J. 299 (1994)).      "'[V]ideotaped testimony provides more than

conventional, transcribed testimony'" because the jury views the

image of the witness and hears "'all of the animation, passion,

or sympathy originally conveyed'" in the witness's words.               A.R.,

213 N.J. at 553 (quoting Michaels, 264 N.J. Super. at 644). Seeing

the image "magnifies the effect of" hearing "every inflection,

every hesitation, and every equivocation in the voice of the

witness."   Id. at 546.       "The video recording is the functional

equivalent of a live witness and can be particularly persuasive."

Id. at 560 (citation omitted).           Because "a video replay . . .

presents much more information than does a transcript reading,"

defendant   is    mistaken   in   claiming    that   a   transcript   is   the

functional equivalent of a videotaped statement.             Burr, 195 N.J.

at 133 (quoting Michaels, 264 N.J. Super. at 644).

     Defendant notes the precaution that, "because a jury's review

of a videotaped witness statement or testimony raises concerns

that a particular segment will be overemphasized or viewed out of

context, any replay of such a statement or testimony must be

conducted in open court, under the careful supervision of the

trial   judge."     Weston,   222   N.J.     at   292-93.    However,      this

precaution arose from the Court's principal fear that jurors would

"place undue emphasis" on video recordings because of "the unique

features of . . . video-recorded evidence."              A.R., 213 N.J. at

                                    27                                A-0749-16T1
546, 559-61; see Burr, 195 N.J. at 131-34 (citing precautions "to

reduce the risk that the jury would unduly emphasize the videotaped

testimony" "over other testimony presented at trial"); see also

Michaels, 264 N.J. Super. at 643-45 (agreeing that replaying

witness's     videotaped   testimony      "'unduly      emphasized     their

testimony'").    In any event, in these and other cases the Court

stated it was sufficient if "the entire testimony requested should

be played back — including direct and cross examination — so that

evidence may be considered in its proper context."              E.g., State

v. Miller, 205 N.J. 109, 122 (2011).       The trial court provided the

jury with the entire transcript, and thus the entire context.

     Similarly, it was the unique nature of video recordings that

caused the courts to require that "a replay of a videotaped

statement during deliberations should only be conducted upon the

jury's request, and after a determination that the jury's concerns

cannot be addressed with a readback of testimony."              Weston, 222

N.J. at 293 (citing A.R., 213 N.J. at 560-61; Burr, 195 N.J. at

133-35; Michaels, 264 N.J. Super. at 644-45).

     Defendant now complains that the transcript was translated

by a legal secretary in the prosecutor's office.         However, she was

fluent   in   Spanish,   spoke   the    same   Puerto   Rican   dialect     as

defendant, and had translated over a hundred statements.           Both she

and the Spanish-speaking detective certified to the accuracy of

                                   28                                A-0749-16T1
the transcript.    Moreover, defendant points to no inaccuracy in

the transcript.    Thus, defendant has not shown plain error.    See

Weston, 222 N.J. at 300.

     In any event, defense counsel expressly stated he had no

objection to the admission of the transcript, stipulated to changes

to replace inaudible words, and stipulated the jury would receive

a copy.   In his closing argument, counsel reiterated that "[t]he

statement of Mr. Flores was entered into evidence and you'll have

it with you."     Counsel argued defendant's statement showed that

he only intended shoplifting, and that he only took out the knife

to defend himself and escape.    Accordingly, defendant's claim is

also barred by "the invited-error doctrine.    Under that settled

principle of law, trial errors that '"were induced, encouraged or

acquiesced in or consented to by defense counsel ordinarily are

not a basis for reversal on appeal[.]''"    A.R., 213 N.J. at 561-

63 (citations omitted) (barring the defendant from complaining

that the jury had unfettered access to a video-recorded statement

during deliberations); see N.J. Div. of Youth & Family Servs. v.

M.C. III, 201 N.J. 328, 339-42 (2010) (barring the defendant from

complaining documents were admitted when defense counsel said he

had no objection).




                                29                          A-0749-16T1
                                   VII.

     Finally, defendant raises a merger claim the State concedes

is meritorious.      On the robbery court, the trial court sentenced

defendant to ten years in prison with 85% parole ineligibility

under the No Early Release Act, N.J.S.A. 2C:43-7.2.          On the count

charging the possession of a weapon for unlawful purposes, the

court imposed a concurrent term of four years in prison.

     As the parties agree, the possession for unlawful purposes

count should have merged for sentencing purposes with the robbery

count.    The trial court instructed the jury: "the State contends

that the defendant's unlawful purpose in possessing the knife was

to put the victim in fear of immediate bodily injury."                   That

concededly occurred during, and was an element of, the robbery.

See N.J.S.A. 2C:15-1(a)(2).        There was no evidence of, and the

jury was instructed not to consider, any other unlawful purpose.

"[W]hen the only unlawful purpose in possessing the [knife] is to

use it to commit the substantive offense, merger is required."

See State v. Tate, 216 N.J. 300, 308 (2013) (quoting State v.

Diaz, 144 N.J. 628, 636 (1996)).

     We   reverse    defendant's   sentence   for    possession    for    an

unlawful purpose and remand "for correction of the judgment of

conviction to reflect that the conviction for possession of a

weapon    for   an   unlawful   purpose   merges    into   the   [robbery]

                                   30                              A-0749-16T1
conviction."   See id. at 313.    We affirm in all other respects.

We do not retain jurisdiction.




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