                                       SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                      State v. Earnst Williams (A-33-18) (081283)

Argued September 10, 2019 -- Decided December 11, 2019

TIMPONE, J., writing for the Court.

       The Court considers whether the trial court properly excluded evidence proffered
by defendant Earnst Williams, who shot and killed a victim during a purported drug deal.

       The victim and his friend “Craig” had previously purchased oxycodone from a
supplier, “John.” On this occasion, John had no supplies but referred the victim to
defendant. When Craig and the victim arrived at the appointed location, the victim took
$900 in cash and followed defendant into the building. Craig heard gun shots and called
the police, who found the victim dead from gunshots to his abdomen and to the back of
his head, with $500 on his body.

       On the night of the shooting, defendant made a series of admissions to several of
his cohorts: he never had any drugs to sell because his intent was to rob the victim; he
carried the gun to the transaction; a scuffle ensued when he attempted to rob the victim;
and he shot the victim in the leg, then in the head, took some of his money, and then ran.

       The following day, Craig gave a statement to the police about the shooting and
disclosed the victim’s prior drug deals with John, all of which went “very smoothly.”

        The police arrested defendant, who then asserted that the victim pulled a gun on
him and was killed when the gun went off in an ensuing struggle. In an effort to establish
that the victim brought the handgun used in the homicide, defendant later moved at a
pretrial hearing to cross-examine Craig about his statement to the police concerning his
and the victim’s prior drug transactions with John. Although Craig referenced multiple
drug deals in his statement to the police, the parties focused on one particular transaction
that allegedly transpired in December 2011 at a public mall.

       At the hearing, defendant argued that the 2011 transaction demonstrated that the
victim purchased narcotics not from physicians but on the “streets,” from which one
could infer that the victim knew of the risks and dangers associated with purchasing
drugs on the “streets.” Defendant hypothesized that because the victim was aware of
those risks and dangers, the victim developed a self-protective pattern of carrying a
                                             1
firearm with him when he purchased drugs on the “streets.” Defendant argued that
pattern supported his theory that the victim brought the handgun used in his own
homicide when he met with defendant to purchase narcotics in July 2012. All parties
agreed that neither the victim nor Craig nor John brought a handgun to the December
2011 transaction.

       The trial court ultimately denied defendant’s motion, relying on State v. Cofield,
127 N.J. 328 (1992), and N.J.R.E. 404(b). A jury found defendant guilty of multiple
offenses. Defendant appealed his convictions and sentence, arguing that the trial court
erred by: (1) not allowing defendant to cross-examine Craig about his and the victim’s
December 2011 drug transaction; and (2) imposing an excessive sentence.

       In reversing defendant’s convictions, the Appellate Division ruled that the trial
court erred by not allowing defendant to introduce relevant exculpatory evidence of the
victim’s prior drug purchase to support his self-defense claim. The Appellate Division
explained that Cofield and Rule 404(b) are inapplicable when a defendant seeks to
present other-crime evidence defensively and determined that defendant’s proffered
evidence should have been admitted because it was relevant. The appellate court did not
consider the sentencing claim.

       The Court granted the State’s petition for certification. 236 N.J. 235 (2018).

HELD: The Court agrees with the Appellate Division’s determination that Rule 404(b)
was inapplicable here but finds that defendant’s proffered evidence failed to meet the
threshold requirement of admissibility: relevancy. It was therefore not admissible.

1. When, as here, a defendant seeks to use other-crime evidence defensively
-- sometimes referred to as reverse 404(b) evidence -- that defendant is free to present
such evidence unconstrained by the admissibility requirements promulgated in Cofield.
An accused is entitled to advance in his defense any evidence which may rationally tend
to refute his guilt or buttress his innocence of the charge made. To determine whether a
defendant may use other-crime evidence, courts must apply the relevance standard of
Rule 401. (p. 12)

2. Evidence must be relevant for it to be admissible. To be relevant, the evidence must
first have probative value -- it must have a “tendency in reason to prove or disprove” a
fact. N.J.R.E. 401. Necessarily, for evidence to be relevant, it must also be material. A
material fact is one which is really in issue in the case. (pp. 13-14)

3. Here, defendant sought to prove that the victim brought a handgun to the July 2012
transaction by introducing evidence about an earlier transaction to which the victim did
not bring a handgun. Defendant’s proffered evidence lacked probative value. Simply
put, it was speculative, unproven, and ultimately irrelevant; it could not reasonably give
                                             2
rise to the inferences the defense sought to draw. Defendant failed to establish the
“logical connection” required for relevance purposes between the evidence he sought to
admit and the present case, and the evidence is therefore inadmissible under Rule 401.
(pp. 14-16)

4. Even if it were relevant, the evidence would be subject to exclusion under Rule 403
because it would have resulted in the needless presentation of cumulative evidence --
other evidence had been admitted that tended to support the limited point for which
defendant wished to introduce the proffered evidence. (pp. 16-17)

      The judgment of the Appellate Division is REVERSED, defendant’s
convictions are REINSTATED, and the matter is REMANDED for consideration of
defendant’s sentencing claim.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’S opinion.




                                           3
       SUPREME COURT OF NEW JERSEY
             A-33 September Term 2018
                       081283


                 State of New Jersey,

                 Plaintiff-Appellant,

                          v.

                Earnst Williams, a/k/a
                  Ernest Williams,

               Defendant-Respondent.

        On certification to the Superior Court,
                  Appellate Division.

      Argued                       Decided
 September 10, 2019            December 11, 2019


Frank J. Ducoat, Special Deputy Attorney General/Acting
Assistant Prosecutor, argued the cause for appellant
(Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney; Lucille M. Rosano, Special Deputy
Attorney General/Acting Assistant Prosecutor, of counsel
and on the briefs).

Brian P. Keenan, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; Brian P. Keenan, of counsel
and on the briefs).

Kayla E. Rowe, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Gurbir S. Grewal, Attorney General, attorney; Kayla E.
Rowe, of counsel and on the brief).

                          1
           JUSTICE TIMPONE delivered the opinion of the Court.


      In the case before us, defendant Earnst Williams shot and killed the

victim at close range in the midst of a July 2012 drug transaction. At trial,

defendant offered a fulsome self-defense justification. He sought to buttress

that defense with evidence of the victim’s prior, unrelated drug deal with

another individual to establish the victim brought a handgun to the July 2012

transaction. The trial court precluded defendant from presenting such

evidence. The jury ultimately convicted defendant of aggravated manslaughter

and felony murder.

      Defendant appealed the trial court’s evidentiary ruling and his sentence.

The Appellate Division reversed, finding the trial court erred by not permitting

defendant to present evidence of the victim’s prior drug purchase in a public

place. Having remanded the case for a new trial, the Appellate Division did

not address defendant’s sentencing issues.

      We, in turn, now reverse the judgment of the Appellate Division, finding

defendant’s proffered evidence failed to meet the threshold requirement of

admissibility: relevancy. We remand to the Appellate Division for

consideration of defendant’s sentencing claims.




                                        2
                                       I.

      At trial, the State and defendant agreed that defendant shot and killed the

victim during a purported drug purchase. Defendant claimed he acted in self-

defense in killing the victim. The State disputed that claim, arguing defendant

killed the victim during a robbery.

      A recitation of the facts is in order, gleaned from the record below.

While home on summer break from college, the victim, his friend Craig, and a

few other friends sought out oxycodone pills to “get high.” Craig and the

victim had previously purchased oxycodone from a supplier, John. (We use

fictitious names for the witnesses.) John had no supplies but referred the

victim to defendant.

      Defendant and the victim negotiated the price for the oxycodone and

arranged for the purchase. While Craig and the victim drove to meet

defendant, the victim and defendant text-messaged each other to finalize the

particulars of the location and the drug exchange. Defendant rejected the

victim’s suggestion that they meet in a public place, insisting instead on

meeting at an apartment building in Montclair. Defendant also demanded he

be given the money up front, after which he would “run upstairs” to retrieve

the drugs for the victim. Instead, the victim suggested he would drive up to

the building where the exchange could be made from the car. Defendant


                                        3
rejected that idea and insisted that they make the exchange in the apartment

hallway.

      As the victim and Craig approached in their car, they spotted defendant

on the street waving them down. After defendant entered Craig’s car, he made

an additional demand: he would make the sale only if just one of them went in

the building with all the money. Agreeing, the victim took $900 in cash and

followed defendant into the building. Craig pulled the car around the block.

      Moments later, Craig heard two gunshots coming from inside the

building. Craig waited a moment and called the victim’s cell phone. It went

unanswered. Afraid for his own life, Craig sped away and called the police.

      Upon arrival, the police entered the hallway and found the victim dead

in the stairwell from gunshots to his abdomen and to the back of his head. The

gunshot to the victim’s head was fatal. The police recovered $500 from the

victim’s body.

      On the night of the shooting, defendant made a series of admissions to

several of his cohorts: he never had any drugs to sell because his intent was to

rob the victim; he carried the gun to the transaction; a scuffle ensued when he

attempted to rob the victim; and he shot the victim in the leg, then in the head,

took some of his money, and then ran.




                                        4
      The following day, Craig gave a statement to the police about the

shooting, telling the officers about the victim’s agreement to meet with

defendant in Montclair to purchase oxycodone. Craig also disclosed the

victim’s prior drug deals with John, all of which went “very smoothly.” Craig

reviewed a photo array, positively identifying defendant as the individual he

picked up in his car and saw enter the building with the victim before hearing

two gunshots.

      The police later arrested defendant and charged him in connection with

the homicide. After his arrest, and in full contradiction of the statements he

made to his cohorts, defendant told investigators he had planned to sell the

victim oxycodone all along, that he had stashed the pills in the building, and

when he took the pills out to make the exchange, the victim brandished a

handgun and attempted to “take my drugs.” According to defendant, he and

the victim wrestled for the weapon. During the ensuing struggle, the handgun

went off twice, striking the victim first in the leg and then in his head. After

the second shot, defendant picked up the gun and ran from the building. He

later discarded his shirt and the gun.

      A grand jury indicted defendant for murder, felony murder, robbery,

conspiracy to commit robbery, and various weapon and drug offenses.




                                         5
      In an effort to establish that the victim brought the handgun used in the

homicide, defendant moved at a pretrial N.J.R.E. 104 hearing to cross-examine

Craig about his statement to the police concerning his and the victim’s prior

drug transactions with John. Although Craig referenced multiple drug deals in

his statement to the police, the parties focused on one particular transaction

that allegedly transpired in December 2011 at a public mall.

      At the pretrial Rule 104 hearing, defendant argued that the victim’s

previous drug transaction with John demonstrated that the victim purchased

narcotics not from physicians but on the “streets,” from which one could infer

that the victim knew of the risks and dangers associated with purchasing drugs

on the “streets.” Defendant hypothesized that because the victim was aware of

those risks and dangers, the victim developed a self-protective pattern of

carrying a firearm with him when he purchased drugs on the “streets.”

Defendant argued that pattern supported his theory that the victim brought the

handgun used in his own homicide when he met with defendant to purchase

narcotics in July 2012.

      When probed by the trial court, defense counsel candidly admitted that

he knew of no violent interaction that took place in any drug transaction

involving the victim or Craig. All parties agreed that neither the victim nor

Craig nor John brought a handgun to the December 2011 transaction.


                                        6
      The trial court ultimately denied defendant’s motion. Relying on State

v. Cofield, 127 N.J. 328 (1992), and N.J.R.E. 404(b), the trial court found

defendant’s proffered evidence inadmissible because the July 2012 transaction

and the December 2011 transaction were too dissimilar. The trial court was

skeptical the December 2011 sale occurred at all, explaining that defendant

could not verify the transaction had actually happened. The trial court

acknowledged that defendant’s purpose in presenting the evidence was to

establish the victim’s desperation as an alleged drug addict -- desperation that

would theoretically have led the victim to bring a handgun with him to meet

defendant. The trial court ruled there was nothing in the record to support

multiple inferences that because the victim was conjectured to be a drug

addict, having previously purchased drugs on the “streets,” he was desperate

enough to arm himself when meeting with defendant.

      Following a trial, the jury found defendant guilty of aggravated

manslaughter as a lesser-included offense of first-degree knowing and

purposeful murder. The jury also found defendant guilty of felony murder,

robbery, and the remaining firearm and controlled dangerous substance

offenses of the indictment. At sentencing, the trial judge sentenced defendant

to fifty years imprisonment subject to an 85% parole disqualifier under the No

Early Release Act, N.J.S.A. 2C:43-7.2, for felony murder. The judge then


                                        7
merged defendant’s remaining convictions into defendant’s felony murder

conviction.

      Defendant appealed his convictions and sentence, arguing that the trial

court erred by: (1) not allowing defendant to cross-examine Craig about his

and the victim’s December 2011 drug transaction with John to support his self -

defense claim; and (2) imposing an excessive sentence.

      In reversing defendant’s convictions, the Appellate Division ruled that

the trial court erred by not allowing defendant to introduce relevant

exculpatory evidence of the victim’s prior drug purchase to support his self -

defense claim. The Appellate Division determined that the trial court

erroneously applied Cofield and Rule 404(b) to exclude defendant’s proffered

evidence. The Appellate Division explained that Cofield and Rule 404(b) are

inapplicable when a defendant seeks to present other-crime evidence

defensively. Relying on State v. Weaver, 219 N.J. 131 (2014), the appellate

court reasoned a defendant is permitted to present other-crime evidence

defensively so long as the evidence is relevant under Rule 401 and not

excludable under Rule 403 of the New Jersey Rules of Evidence.

      Applying that standard, the Appellate Division determined that

defendant’s proffered evidence should have been admitted because the

victim’s “state of enhanced vigilance, stemming from the drug transaction out


                                        8
of public view, was somewhat supportive of the defense that [the victim]

brought a gun to the sale.” Because the Appellate Division reversed

defendant’s convictions and ordered a new trial, the court did not consider

defendant’s excessive sentencing claim.

      We granted the State’s petition for certification. 236 N.J. 235 (2018).

We also granted the Office of the Attorney General’s motion for leave to

appear as amicus curiae.

                                       II.

      The State argues that the Appellate Division misapplied the Rules of

Evidence when it reversed the trial court’s decision to exclude evidence of the

victim’s previous drug transaction with John and Craig. The State contends

that defendant’s proffered evidence was irrelevant and, therefore, inadmissible

because the victim’s involvement in the December 2011 transaction did not

negate defendant’s guilt or support his theory that the victim carried a handgun

and was the initial aggressor in the July 2012 drug transaction. The State

asserts that the two drug transactions were too dissimilar and had no bearing

on defendant’s self-defense claim.

      The Attorney General echoes many of the State’s arguments that

defendant’s proffered evidence was irrelevant and inadmissible. The Attorney

General also contends that the Appellate Division failed to properly defer to


                                       9
the trial court’s factual findings and supplanted the trial court’s judgment with

its own.

      Defendant contends that the trial court wrongfully excluded his

proffered evidence and asks this Court to affirm the Appellate Division’s

decision. Defendant argues that the trial court incorrectly applied the Cofield

standard to exclude his proffered evidence. Defendant asserts that the trial

court should have applied the simple relevance standard under Rule 401 to

determine if his proffered evidence was admissible. Defendant maintains the

evidence was relevant because it would have permitted the jury to infer that

the victim brought the handgun to the July 2012 transaction. According to

defendant, his proffered evidence would explain why the victim requested to

meet with defendant in a public place. Because the victim could not meet with

defendant in a public setting, defendant posits it is more likely the victim

brought the handgun with him as a safety precaution.

                                       III.

      Our legal system calls upon trial courts to perform the vital gatekeeping

function of ensuring “that unreliable, misleading evidence is not admitted.”

State v. Chen, 208 N.J. 307, 318 (2011). Ordinarily, we review a trial court’s

evidentiary rulings under a deferential standard and will “uphold [the trial

court’s] determinations ‘absent a showing of an abuse of discretion.’” State v.


                                        10
Scott, 229 N.J. 469, 479 (2017) (quoting State v. Perry, 225 N.J. 222, 233

(2016)). Under that standard, “[a] reviewing court must not ‘substitute its own

judgment for that of the trial court’ unless there was a ‘clear error in

judgment’-- a ruling ‘so wide of the mark that a manifest denial of justice

resulted.’” Ibid. (quoting Perry, 225 N.J. at 233).

      If the trial court fails to apply the proper legal standard in determining

the admissibility of proffered evidence, we review the trial court’s evidentiary

rulings de novo. See, e.g., State v. Garrison, 228 N.J. 182, 194 (2017)

(applying de novo review when the trial court failed to analyze other-crime

evidence under Rule 404(b)); State v. Darby, 174 N.J. 509, 519 (2002) (same);

accord Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012) (“‘When

the trial court fails to apply the proper test in analyzing the admissibility of

proffered evidence,’ our review is de novo.” (internal brackets removed)

(quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 4.6 on R. 2:10-2

(2012))).

      Applying those standards to the facts of this case, we agree with the

Appellate Division that the evidence rules and case law relied on by the trial

court were not apt. We find, however, that the proffered evidence was not

relevant under Rule 401, and so, the evidence was inadmissible.




                                        11
                                       A.

      When, as here, a defendant seeks to use other-crime evidence

defensively -- sometimes referred to as reverse 404(b) evidence -- that

defendant is free to present such evidence unconstrained by the admissibility

requirements we promulgated in Cofield. “When a person charged with a

criminal offense seeks to use other-crimes evidence defensively, the Cofield

standard does not govern because ‘an accused is entitled to advance in his

defense any evidence which may rationally tend to refute his guilt or buttress

his innocence of the charge made.’” Weaver, 219 N.J. at 150 (quoting State v.

Garfole, 76 N.J. 445, 453 (1978)). A defendant is permitted to use other -crime

evidence defensively so long as such evidence “tends, alone or together with

other evidence, to negate his guilt” or support his innocence of the charges

against him. Garfole, 76 N.J. at 453. To determine whether a defendant may

use other-crime evidence, courts must apply the “simple” relevance standard of

Rule 401. State v. Cook, 179 N.J. 533, 566 (2004) (quoting Garfole, 76 N.J. at

452-53).

      We therefore agree with the Appellate Division’s determination that the

trial court should have considered the admissibility of the evidence under Rule

401 rather than Rule 404(b). We part ways with the appellate court’s

determination that the evidence was relevant and therefore admissible.


                                       12
                                        B.

      “Relevancy is the hallmark of admissibility of evidence.” Darby, 174

N.J. at 519. “Evidence must be relevant for it to be admissible,” State v.

Scharf, 225 N.J. 547, 568 (2016), and “all relevant evidence is admissible”

unless excluded by the Rules of Evidence or other law, N.J.R.E. 402.

Evidence is relevant if it has “a tendency in reason to prove or disprove any

fact of consequence to the determination of the action.” N.J.R.E. 401. There

are two components to relevance: probative value and materiality. State v.

Buckley, 216 N.J. 249, 261 (2013); accord 1 McCormick on Evidence § 185

(7th ed. 2013).

      To be relevant, the evidence must first have probative value -- it must

have a “tendency in reason to prove or disprove” a fact. N.J.R.E. 401; see also

Perry, 225 N.J. at 237 (“[T]he ‘probative value’ of evidence is determined by

‘its tendency to establish the proposition that it is offered to prove.’” (quoting

State v. Garron, 177 N.J. 147, 167 n.2 (2003))). To determine whether

evidence has probative value, courts should “focus on the logical connection

between the proffered evidence and a fact in issue, or the tendency of [the]

evidence to establish the proposition that it is offered to prove.” Griffin v.

City of East Orange, 225 N.J. 400, 413 (2016) (internal quotation marks and

brackets in original omitted) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J.


                                        13
480, 492 (1999)). “To say that ‘evidence is irrelevant in the sense that it lacks

probative value’ means that it ‘does not justify any reasonable inference as to

the fact in question.’” Verdicchio v. Ricca, 179 N.J. 1, 33-34 (2004) (quoting

State v. Allison, 208 N.J. Super. 9, 17 (App. Div. 1985)).

      Necessarily, for evidence to be relevant, it must also be material.

McCormick, § 185; see also Garron, 177 N.J. at 167 n.2. “The ‘materiality’ of

evidence concerns the strength of the relation between the proposition for

which it is offered and an issue in the case.” Garron, 177 N.J. at 167 n.2; see

also McCormick, § 185, at 994 (stating that materiality “looks to the relation

between the propositions that the evidence is offered to prove and the issues in

the case”). “A material fact is one which is really in issue in the case.”

Buckley, 216 N.J. at 261 (quoting State v. Hutchins, 241 N.J. Super. 353, 359

(App. Div. 1990)).

      Here, defendant sought to prove that the victim brought a handgun to the

July 2012 transaction by introducing evidence about an earlier transaction to

which the victim did not bring a handgun. Before the trial court, defense

counsel focused on the evidence’s potential to support the argument that

defendant was aware of the dangers posed by “street” transactions and so he

armed himself for protection when he made those deals. Defendant now

asserts that, unlike the December 2011 transaction, the victim could not


                                        14
negotiate the location of his transaction with defendant, was concerned for his

safety, and therefore brought the handgun used in the shooting as a safety

precaution.

      Against the backdrop of the Rule 401 standards previously set forth,

defendant’s proffered evidence was not relevant because it lacked probative

value -- that is, the evidence did not have a tendency to prove the proposition

for which it was offered. See Perry, 225 N.J. at 237. Defendant’s evidence

could not tend to prove that the victim brought a handgun to the July 2012

“street” transaction because there was no evidence that the victim brought a

firearm to the December 2011 “street” transaction. See Griffin, 225 N.J. at

413. Indeed, the victim’s transaction with John in December 2011 was a brief,

nonviolent drug deal. There was no evidence that the victim brought a

handgun to the December 2011 transaction or any of the other transactions

mentioned in Craig’s statement to the police. And, there was no evidence that

those transactions were violent in nature.

      Nor did the victim’s unarmed, nonviolent transaction with John support

the theory advanced by defense counsel before this Court -- that because the

victim could not meet with defendant in a public place, he armed himself for

protection when he met with defendant. In the context of this case, the failure

to carry a weapon in one situation, without more, cannot reasonably support an


                                       15
inference that a weapon was carried in another situation. Simply put,

defendant’s proffered evidence was speculative, unproven, and ultimately

irrelevant; it could not reasonably give rise to the inferences the defense

sought to draw. Defendant failed to establish the “logical connection” required

for relevance purposes between the evidence he sought to admit and the

present case, and the evidence is therefore inadmissible under Rule 401.

      And even if it were relevant, the evidence would be subject to exclusion

under Rule 403, which requires courts to exclude relevant evidence “if its

probative value is substantially outweighed by the risk of (a) undue prejudice,

confusion of issues, or misleading the jury or (b) undue delay, waste of time,

or needless presentation of cumulative evidence.”

      Admitting defendant’s proffered evidence would have resulted in the

needless presentation of cumulative evidence. The text messages between the

victim and defendant before the July 2012 drug deal -- which were read to the

jury -- demonstrated the victim’s apprehensions about meeting with defendant.

The messages revealed that the victim wanted to meet in a public place and

when defendant rebuffed the victim’s request, the victim told defendant he did

not want to meet inside the residence defendant suggested. From those text

messages, the jury could have readily inferred the victim’s safety concerns and

his desire to take precautions to ensure his safety -- such as conducting the


                                        16
transaction in a public setting -- without reference to any of the victim’s prior

drug transactions with John. Because other evidence had been admitted that

tended to support the limited point for which defendant wished to introduce the

proffered evidence, his evidence was subject to exclusion. See State v.

Stevens, 115 N.J. 289, 303 (1989) (requiring trial courts to consider whether

other evidence can serve the same purpose for which other-crime evidence is

proffered when determining the admissibility of the other-crime evidence).

      Although we find the evidence cumulative in a limited respect, our

determination that it is speculative and ultimately irrelevant suffices to end the

analysis there. In sum, we agree with the Appellate Division’s determination

that Rule 404(b) was inapplicable here, but we agree with the trial court’s

ultimate conclusion that the evidence was inadmissible.

                                       IV.

      We reverse the judgment of the Appellate Division, reinstate defendant’s

convictions, and remand to the Appellate Division for consideration of

defendant’s sentencing claim.



    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE
TIMPONE’S opinion.




                                        17
