                        NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4299-15T4
                                                   A-4350-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ESTERLIN M. TORRES

     Defendant-Appellant.
___________________________________

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JONATHAN TORRES,

     Defendant-Appellant.
___________________________________

              Argued February 26, 2018 – Decided August 21, 2018

              Before Judges Ostrer and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              09-09-3185.

              Louis H. Miron argued the cause for appellant
              Esterlin M. Torres.
          Steven M. Gilson argued              the   cause   for
          appellant Jonathan Torres.

          Kevin J. Hein, Assistant Prosecutor, argued
          the cause for respondent (Mary Eva Colalillo,
          Camden County Prosecutor, attorney; Kevin J.
          Hein, of counsel and on the brief).

          Appellants filed pro se supplemental briefs.

PER CURIAM

     Defendants   Esterlin    and   Jonathan    Torres   appeal    from   the

denial of their petitions for post-conviction relief (PCR) without

an evidentiary hearing.      The brothers raise substantially similar

arguments in their collateral challenges to their convictions for

kidnapping, aggravated assault and related crimes.                Defendants

assert they received ineffective assistance of trial and appellate

counsel. We consolidate their appeals for this opinion, and affirm

in part, reverse in part and remand for an evidentiary hearing.

                                    I.

     We presume familiarity with the facts, which we extensively

reviewed in our opinions affirming the convictions on direct

appeal, State v. Torres, No. A-4500-09 (App. Div. Feb. 14, 2012)

(Torres I), and on motions for reconsideration, State v. Torres,

No. A-4500-09 (App. Div. Aug. 7, 2013) (Torres II).

     In Torres II, we declined to address defendants' newly-minted

claims of trial court error, because they failed to raise those

before the trial court or in their direct appeal.            See Torres II,

                                    2                                A-4299-15T4
slip op. at 13-15.          Specifically, defendants argued the trial

court erred by: (1) granting the jury unfettered access in the

jury room to Joshua Calero's incriminating videotaped statement;

(2) giving the jury a dictionary definition of "substantial" in

response to a jury question about the legal meaning of the word

with respect to the kidnapping charge; and (3) failing to give a

unanimity charge to assure that all jurors agreed as to the

asportation or confinement element of kidnapping.                     Id. at 13.        We

commented    that    whether     the    trial      and    appellate    counsel       were

ineffective in not raising those points of error was not before

us to decide.       Id. at 17.

     That    issue    is   before      us   now.         In   their   PCR   petitions,

defendants    contend      their       trial    and      appellate     counsel       were

deficient in failing to raise those three issues.                            They also

contend that trial and appellate counsel were ineffective because

they did not challenge ex parte contacts between the judge and the

jury, and the court's failure to conduct an arraignment-status

conference after a superseding indictment was returned.

     The    PCR   court    rejected         defendants'       petition      as   a   mere

reframing of the Torres II claims "couch[ed] . . . in terms of

ineffective assistance of counsel."                The PCR court held that Rules

3:22-3 and -4 barred defendants' claims, because defendants could

have raised them on direct appeal.                 The court also inferred that

                                            3                                    A-4299-15T4
we deemed defendants' claims to lack merit, because we declined

to address them.

     Defendants now appeal from the PCR court's decision.      With

minor wording and numbering variations, they raise the following

identical issues (quoting from Jonathan's counseled brief to avoid

repetition):

          POINT I

          THE PCR COURT ERRED BY PROCEDURALLY BARRING
          DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL
          CLAIMS.

          POINT II

          TRIAL AND APPELLATE COUNSEL DEPRIVED DEFENDANT
          OF EFFECTIVE ASSISTANCE OF COUNSEL.

               A.   Trial   Counsel/Initial    Appellate
               Counsel Failed To Object/Raise The Trial
               Court's Allowing The Jury To Have
               Unfettered Access To Joshua Calero's
               Video-Recorded Statement In The Jury
               Room; Therefore, The Aggravated Assault
               Convictions Regarding Calero Must Be
               Reversed   Or,   In    The   Alternative,
               Defendant Must Be Afforded An Evidentiary
               Hearing Because He Established A Prima
               Facie Case Of Counsels' Ineffectiveness.

               B.    Trial Counsel/Initial Appellate
               Counsel Failed To Object/Raise The Trial
               Court's   Erroneous   Kidnapping   Charge
               Regarding      The     Definition      Of
               "Substantial"; Therefore, Defendant's
               Kidnapping Convictions Must Be Reversed
               Or, In The Alternative, Defendant Must
               Be Afforded An Evidentiary Hearing
               Because He Established A Prima Facie Case
               Of Counsels' Ineffectiveness.

                                4                          A-4299-15T4
              C.     Trial Counsel/Initial Appellate
              Counsel Failed To Object/Raise The Need
              For A Specific Unanimity Charge Regarding
              Kidnapping;     Therefore,    Defendant's
              Kidnapping Convictions Must Be Reversed
              Or, In The Alternative, Defendant Must
              Be Afforded An Evidentiary Hearing
              Because He Established A Prima Facie Case
              Of Counsels' Ineffectiveness.

              D.    Trial Counsel/Appellate Counsel
              Failed To Object/Raise The Trial Court's
              Ex Parte Communications With The Jury;
              Therefore, Defendant's Convictions Must
              Be Reversed Or, In The Alternative,
              Defendant Must Be Afforded An Evidentiary
              Hearing Because He Established A Prima
              Facie Case Of Counsels' Ineffectiveness.

              E.    Trial Counsel/Appellate Counsel
              Failed To Request/Raise The Need For An
              Arraignment/Status Conference Regarding
              The Superseding Indictment; Therefore,
              Defendant's Convictions Must Be Reversed
              Or, In The Alternative, Defendant Must
              Be Afforded An Evidentiary Hearing
              Because He Established A Prima Facie Case
              Of Counsels' Ineffectiveness.

         POINT III

         TRIAL AND APPELLATE COUNSELS' CUMULATIVE
         ERRORS MANDATE THAT DEFENDANT'S CONVICTIONS BE
         REVERSED   OR,   IN  THE   ALTERNATIVE,   THAT
         DEFENDANT BE AFFORDED AN EVIDENTIARY HEARING.1




1
  Point II(E) of Jonathan's brief appears as Point III in
Esterlin's brief; and Point III of Jonathan's brief appears as
Point IV in Esterlin's brief.


                               5                          A-4299-15T4
    Esterlin raises the following additional point, numbered

Point II(E) of his counseled brief:

         The Trial Court Abused Its Discrepion [sic]
         In Denying Esterlin's Motion to Interview The
         Trial Jurors Which Would Have Enabled The PCR
         Court To Determine The Substance Of The Trial
         Judge's Ex Parte Communications With The
         Jurors And Each Of The Juror's Perception Of
         The Trial Judge's Communications.

    In supplemental pro se briefs, the brothers argue:

         POINT I

         THE PCR COURT'S FINDINGS SUMMARILY DENYING
         POST-CONVICTION RELIEF SHOULD BE REVERSED AND
         THIS CASE SHOULD BE REVERSED AND REMANDED FOR
         A NEW TRIAL, BECAUSE APPELLATE COUNSEL WAS
         INEFFECTIVE   IN   FAILING  TO   PROVIDE   THE
         APPELLATE DIVISION A COMPLETE RECORD WITH
         RESPECT TO EX-PARTE COMMUNICATIONS BETWEEN THE
         TRIAL JUDGE AND A DELIBERATING JURY, INCLUDING
         UNRECORDED TELEPHONE DISCUSSIONS WITH THE
         JURORS, FROM THE JUDGE'S PERSONAL HOME PHONE.

              A.   THE PCR COURT'S FINDINGS SUMMARILY
              DENYING POST-CONVICTION RELIEF SHOULD BE
              REVERSED AND THIS CASE SHOULD BE REVERSED
              AND REMANDED FOR A NEW TRIAL, BECAUSE
              TRIAL COUNSEL AND INITIAL APPELLATE
              COUNSEL WERE INEFFECTIVE IN FAILING TO
              (1) OBJECT TO THE TRIAL COURT'S EX-PARTE
              COMMUNICATIONS, (2) REQUEST TO VOIR DIRE
              THE   JURORS,   AND    (3)   RAISE   THIS
              SIGNIFICANT ISSUE ON DIRECT APPEAL.

              B. THE PCR COURT'S RULING DENYING POST
              CONVICTION RELIEF SHOULD BE REVERSED AND
              THIS CASE SHOULD BE REVERSED AND REMANDED
              FOR A NEW TRIAL, BECAUSE PETITIONER WAS
              DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO
              EFFECTIVE ASSISTANCE OF COUNSEL, A PUBLIC
              TRIAL BY AN IMPARTIAL JURY AND DUE

                               6                          A-4299-15T4
               PROCESS   UNDER    THE    UNITED      STATES
               CONSTITUTION   AND    THE    NEW      JERSEY
               CONSTITUTION.

                                 II.

     As the trial court declined to hold an evidentiary hearing,

we review defendants' PCR petitions de novo.      See State v. Harris,

181 N.J. 391, 421 (2004).   We consider the facts in the light most

favorable to defendants.    See State v. Porter, 216 N.J. 343, 354

(2013); R. 3:22-10(b).

                                 A.

     Addressing defendants' first point on appeal, we agree their

ineffective assistance of counsel claims are not procedurally

barred by Rules 3:22-3 and -4.        Defendants allege the points of

error were not raised at the trial or appellate level because

their counsel failed to provide them with minimally effective

assistance of counsel, as guaranteed by the Constitution. Notably,

in response to defendants' new points of trial error, first raised

in their petition for certification, the State argued they were

"best raised" in a PCR petition.       Torres II, slip op. at 6.

     "Under New Jersey case law, petitioners are rarely barred

from raising ineffective-assistance-of-counsel claims on post-

conviction review."   State v. Preciose, 129 N.J. 451, 459 (1992).

Although defendants could have raised the underlying trial errors

in the proceedings resulting in the conviction, see R. 3:22-4,

                                  7                            A-4299-15T4
they could not have raised their attorneys' ineffectiveness to

present those errors.   "Our courts have expressed a general policy

against entertaining ineffective-assistance-of-counsel claims on

direct appeal because such claims involve allegations and evidence

that lie outside the trial record."    Preciose, 129 N.J. at 460.

Consequently,   "[i]neffective-assistance-of-counsel    claims    are

particularly suited for post-conviction review because they often

cannot reasonably be raised in a prior proceeding."    Ibid. (citing

R. 3:22-4).

     We have previously explained that ineffective assistance of

counsel claims are not barred by Rule 3:22-4:

          [I]neffective assistance of counsel claims,
          particularly   ineffective    assistance   of
          appellate counsel, are congruous with the
          exceptions to the procedural bar of R. 3:22-4
          because they (1) implicate issues that could
          not have been reasonably raised in prior
          proceedings; (2) involve infringement of
          constitutional   rights;   or   (3)   present
          exceptional circumstances involving a showing
          of fundamental injustice.

          [State v. Moore, 273 N.J. Super. 118, 125
          (App. Div. 1994).]

Furthermore, although Rule 3:22-3 provides that a PCR proceeding

"is not . . . a substitute for appeal from conviction," it has

been observed that "such claims as ineffective assistance of trial

counsel are ordinarily not barred by this rule since direct appeal

does not provide an appropriate remedy."      Pressler & Verniero,

                                 8                           A-4299-15T4
Current    N.J.   Court      Rules,   cmt.   on    R.   3:22-3     (2018)   (citing

Preciose).

       In sum, defendants' ineffective assistance of counsel claims

are not procedurally barred.

       The court also misinterpreted as a decision on the merits,

our previous refusal to address points of error that were not

timely raised.      Although the trial court correctly observed that

we have the discretion to address issues sua sponte, we generally

decline to do so.       See State v. Arthur, 184 N.J. 307, 327 (2005)

(stating appellate courts should be "hesitant to raise an issue

sua    sponte   that   the    parties   have      not   had   an   opportunity     to

address").      Consequently, our recognition of the unanimity charge

issue on direct appeal, see Torres I, slip op. at 41 n.9, did not

imply we decided it lacked merit.              Nor did we imply a negative

view of the Calero video issue.              See Torres II, slip op. at 16

n.6.    We simply declined to decide the issues.

       We also part company with the PCR court's conclusion that

defendants' petitions were barred because they failed to comply

with Rule 3:22-10(c), which requires that "[a]ny factual assertion

that provides the predicate for a claim of [PCR] must be made by

an affidavit or certification pursuant to Rule 1:4-4 and based

upon personal knowledge of the declarant . . . ."



                                        9                                   A-4299-15T4
       Each defendant verified the allegations in his PCR petition,

stating, "I . . . have reviewed the allegations of the above [PCR]

Petition and do verify upon my personal knowledge that they are

true and correct."         That sufficed as a verification.              See Monmouth

Cnty. Div. of Social Servs. v. P.A.Q., 317 N.J. Super. 187, 193

(App. Div. 1998) (describing form of verification required by Rule

1:4-7).    Rule 1:4-4(b) prescribes the wording of a certification

"[i]n lieu of the affidavit, oath or verification" required by

these rules . . . ."          (Emphasis added).           Although defendants did

not submit an "affidavit or certification pursuant to Rule 1:4-

4," R. 3:22-10(c), their technical non-compliance does not justify

rejection of their petitions.              See State v. Jones, 219 N.J. 298,

312-13    (2014)      (rejecting      State     argument    that    technical     non-

compliance with Rule 3:22-10(c) justified rejecting petition);

State v. Brewster, 429 N.J. Super. 387, 396 (App. Div. 2013)

(considering facts presented in petition as if "they had been

properly presented by means of a sworn statement").

                                           B.

       In reviewing the merits of defendants' petitions, we apply

the   familiar       two-pronged      Strickland    standard.        Strickland      v.

Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,

52    (1987).        To   establish    a   prima   facie    case    of   ineffective

assistance      of    counsel,     defendants      must    show    their   counsel's

                                           10                                 A-4299-15T4
performance "fell below an objective standard of reasonableness,"

and   "the       deficient     performance       prejudiced        the   defense."

Strickland,      466   U.S.    at   687-88.     Prejudice     is    defined    as    a

"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Id. at 694.      "The right to effective assistance" includes that of

appellate counsel, and the same Strickland test applies to claims

that such assistance was denied.              State v. O'Neil, 219 N.J. 598,

610-11 (2014).

      We consider first whether trial and appellate counsel were

ineffective in failing to object to, or to raise on appeal, the

court's    use    of   a   dictionary    definition    of     "substantial"         in

responding to a jury question about kidnapping.                We conclude that

defendants have established a prima facie case of ineffective

assistance of counsel, warranting a remand for an evidentiary

hearing.

      The jury convicted defendants of three counts of kidnapping

– one count for each occupant in Fabian Muniz's vehicle, including

Muniz.     The State presented evidence that defendants, while one

possessed a gun, jumped into Muniz's car at 40th Street in Camden

after shooting at Calero; instructed Muniz to drive until they

told him to stop; and ultimately got out at 36th Street.                      Torres

I, slip op. at 6-8.           The jury had to decide whether defendants,

                                        11                                 A-4299-15T4
with the purpose "[t]o facilitate the commission of any crime or

flight thereafter," unlawfully removed the victims a "substantial

distance" or confined them for a "substantial period."                              See

N.J.S.A. 2C:13-1(b)(1) (defining kidnapping).

       In its initial instructions to the jury, the trial judge

relied on the model charge on kidnapping.                 The charge instructs

that if the victim is not unlawfully removed from his or her home

or business, then the State must prove that the victim was moved

a "'substantial distance' from the vicinity from which the victim

was   removed,"       or   was   unlawfully    confined    for       a   "substantial

period."       Model Jury Charge (Criminal), "Kidnapping (N.J.S.A.

2C:13-1(b)(1) to (3))" (2007).

       The    model    charge    further     explains    that    a       "'substantial

distance' is not measured in feet, yards, or miles, nor by any

other standard of linear measurement.                   Rather, a 'substantial

distance' is significant, in that it is more than incidental to

the underlying crime and substantially increases the risk of harm

to    the    victim."       Ibid.     The     charge    also    explains       that    a

"'substantial period' is not measured in seconds, minutes, or

hours, nor by any other standard based strictly on the passage of

time."       Ibid.     Like a "substantial distance," a "'substantial

period' is one that is significant, in that it is more than



                                        12                                     A-4299-15T4
incidental to the underlying crime and substantially increases the

risk of harm to the victim."            Ibid.

     The court, reading the instruction to the jury, informed the

jurors that the "increased risk of harm must not be trivial."

Thus, the court continued, "If the victim is removed only a slight

distance from the vicinity from which he or she was removed and

such movement does not create the isolation and increased risk of

harm that are at the heart of the kidnapping statute, then you

should   not     convict    the    defendant      of    the   kidnapping   charge."

Likewise, "[i]f the victim is confined for only a slight period

of time and such confinement does not create the isolation and

increased harm that are at the heart of kidnapping statute, then

you should not convict the defendant of the kidnapping charge."

     During deliberations, the jury asked the court whether it

could    "look     up     word    in    dictionary,       legal    definition      of

substantial."           Unable    to   find   a   definition      in   Black's   Law

Dictionary, the judge – with defense counsel's consent – first

proposed to inquire whether the jury sought the definition with a

particular instruction in mind; and absent such clarification, to

read the first definition of "substantial" from Merriam Webster's

Collegiate Dictionary (10th ed. 1993).                 However, before giving the

jury a chance to respond to his inquiry, the judge proceeded to

supply the dictionary definition: "[T]he primary definition of the

                                         13                                 A-4299-15T4
word 'substantial' is as follows: 'Consisting of or relating to

substance; not imaginary or illusory.'"        The judge then repeated

the definition.2

     Reflecting continuing difficulty, the jury submitted another

note, stating that it needed the definition of "substantial" to

answer the jury verdict sheet's questions on kidnapping.                In

response, the judge repeated the model jury charge, but then

concluded by reciting the dictionary definition again, stating,

"because I believe that may be helpful."             Defendants' trial

attorneys did not register an objection, and their appellate

attorneys did not challenge the trial court's instruction on direct

appeal.

     We conclude the trial judge erred in using the dictionary

definition of "substantial."      It deviated from the model charge

and prevailing case law on the elements of kidnapping, and diluted

the nature of proofs required of the State.

     As   noted,   asportation   for   a   "substantial   distance,"    or

confinement for a "substantial period" is an essential element of

kidnapping, if removal is not from the home or business.       N.J.S.A.



2
   Although   the   model   charge  equates   "substantial"   with
"significant," the court omitted the third dictionary definition,
which states: "3 . . . b: considerable in quantity : significantly
large . . . ." Merriam Webster's Collegiate Dictionary (10th ed.
1993).

                                  14                             A-4299-15T4
2C:13-1(b); see also State v. Jackson, 211 N.J. 394, 414 (2012)

(discussing elements of "non-ransom kidnapping").     The meaning of

"substantial" is critical. "The crime of kidnapping sounds simple,

but . . . defining it 'is a task of special subtlety.'"     State v.

La France, 117 N.J. 583, 586 (1990) (quoting Model Penal Code §

212.1 at 221 (Official Draft and Revised Comments) (1980)).

     In State v. Masino, 94 N.J. 436 (1983), the Court considered

whether "substantial distance" should be defined in linear or

qualitative terms.    Finding a "substantial distance" is "one that

isolates the victim and exposes him or her to an increased risk

of harm," the Court determined it was distinct from the linear

measurement of the distance a victim may have travelled during his

or her confinement.    Id. at 445-46.

     In assessing whether a victim has been removed a "substantial

distance from the vicinity where he is found," a jury necessarily

must also define the "vicinity" under the facts of the case.          A

vicinity is not a fixed point; it is a less well-defined area.

The statute requires that a victim "be moved from the 'vicinity,'

rather than the 'place' where he is found so as 'to preclude

kidnapping convictions based on trivial changes of location having

no bearing on the evil at hand.'"     Id. at 445 (quoting Model Penal

Code § 212.1 cmt. at 16 (Tentative Draft No. 11 (1960)).



                                 15                           A-4299-15T4
     In La France, the Court addressed the confinement element,

stating that a "substantial period" is "criminally significant in

the sense of being more than merely incidental to the underlying

crime,"    considering   "not   only    .    .     .    the     duration   of    the

confinement, but also . . . the 'enhanced risk of harm resulting

from the [confinement] and isolation of the victim [or others].'"

117 N.J. at 594 (quoting Masino, 94 N.J. at 447).                   In reference

to both asportation and confinement, the "enhanced risk [to the

victim] must not be trivial."      Ibid.; Masino, 94 N.J. at 447.                 As

"not every movement or confinement of a victim is a kidnapping,"

La France, 117 N.J. at 586, the nature of the confinement of the

victims in this case was of great importance.                   See also Jackson,

211 N.J. at 418-19 (affirming conviction on both asportation and

confinement grounds, where defendant pointed a gun at a taxi

driver's chest and forced him to drive eight-tenths of a mile in

a city).

     Our   Supreme   Court   has   held     that       "[t]he    jury   should    be

instructed that if the victim is removed only a slight distance

from the vicinity where he or she is found and such movement does

not create the isolation and increased risk of harm that are at

the heart of N.J.S.A. 2C:13-1(b), then it should not convict."

Masino, 94 N.J. at 447.         The model charge complies with this

direction, and includes a similar direction with respect to a

                                   16                                      A-4299-15T4
"victim . . . confined for only a slight period of time and such

confinement does not create the isolation and increased risk of

harm that are at the heart of the kidnapping statute . . . ."

Model Jury Charge (Criminal), "Kidnapping (N.J.S.A. 2C:13-1(b)(1)

to (3))".

     Notwithstanding    this    established    authority,   the     court

instructed the jury three times that "substantial" meant merely

"not imaginary or illusory."     Any measurable distance or period,

trivial     or   significant,   would   meet    that   definition        of

"substantial."     Thus, by that definition, asportation of any

distance, or confinement for any period of time, would satisfy

essential elements of the offense.

     Given the court's clear error, defendants have met their

prima facie burden under Strickland's two prongs to establish that

both trial and appellate counsel were deficient in failing to

object and to raise the issue on appeal, and that defendants

suffered prejudice.

     As for the first prong, on this record, we can fathom no

strategic reason for trial counsel's acquiescence in the court's

use of the "not imaginary or illusory" formulation. The definition

was contrary to the established caselaw and the model charge, and

weakened the State's burden.      Although an appellate advocate is

not obliged to challenge every aspect of defendants' trial, O'Neil,

                                  17                              A-4299-15T4
219 N.J. at 612, a clearly erroneous jury instruction is often a

fruitful avenue for appeal, given the oft-stated principle that

"[e]rroneous instructions are poor candidates for rehabilitation

as harmless, and are ordinarily presumed to be reversible error."

State v. Afanador, 151 N.J. 41, 54 (1997); see also State v.

McKinney, 223 N.J. 475, 495-96 (2015); State v. Bunch, 180 N.J.

534, 541-42 (2004); State v. Jordan, 147 N.J. 409, 422-23 (1997).

       As for the second prong, as just noted, erroneous jury charges

are presumed to be reversible error, particularly when they pertain

to essential elements of a crime.        See State v. Koskovich, 168

N.J. 448, 508 (2001) (stating the Court has "consistently held

that    incorrect   charges   on   substantive   elements   of   a     crime

constitute reversible error" (quoting State v. Rhett, 127 N.J. 3,

7 (1992))).    The evidence in support of the substantial distance

and substantial confinement elements in this case was strong, but

not overwhelming.     Concededly, there was evidence that Jonathan

pointed a gun at Muniz's back, much like the defendant who pointed

the gun at the victim's chest in Jackson, 211 N.J. at 418-19.             See

Torres I, slip op. at 6.      Also, another car soon started following

Muniz.    Id. at 7.    Such evidence could support a finding that

defendants exposed Muniz and his two friends to "an enhanced risk

of harm."    Jackson, 211 N.J. at 419.



                                    18                               A-4299-15T4
     Despite this evidence, the jury obviously struggled with the

concept of substantial distance and substantial time as expressed

in the model charge.        We reject the State's argument that delivery

of   the      model      charge   rendered    the      dictionary       definition

insignificant.         The model charge puzzled the jury.              Rather than

amplify or explain the concepts in the model charge, the dictionary

definition contradicted them.

     The jury may have been unconvinced that defendants pointed a

gun, or that Muniz and the others faced an increased risk of harm.

Notably, Muniz gave a statement, later disavowed, that he told

defendant they could get in his car.              Torres I, slip op. at 11.

Calero alleged in one statement that Muniz was defendant's getaway

driver.      Id. at 9.     Muniz admitted defendants were not strangers.

Id. at 12.     Muniz and his passengers were taken just a few blocks.

The jury may also have expansively viewed the "vicinity" from

where   they      were   removed.      Significantly,     the    jury    acquitted

defendants        of   carjacking,    declining   to   find     that    defendants

threatened the occupants of the vehicle or purposely or knowingly

put an occupant or driver in fear of immediate bodily injury in

the course of committing the unlawful taking of a motor vehicle.

See N.J.S.A. 2C:15-2 (defining carjacking).

     We conclude defendants have made a prima facie showing that

there   is    a    "reasonable      probability   that,   but    for     counsel's

                                        19                                 A-4299-15T4
unprofessional errors, the result of the proceeding would have

been different."       Strickland, 466 U.S. at 694.           "The [Strickland]

Court made clear that 'reasonable probability' is not the same as

more   likely   than    not;     rather       'reasonable    probability     is    a

probability sufficient to undermine confidence in the outcome.'"

State v. L.A., 433 N.J. Super. 1, 14 (App. Div. 2013) (quoting

Strickland, 466 U.S. at 694).        Applying that standard, there is a

reasonable probability that the jury, properly instructed, would

have concluded that the substantiality element was not satisfied,

and opted instead to convict defendants of third-degree criminal

restraint,   N.J.S.A.     2C:13-2,       or    false    imprisonment,   N.J.S.A.

2C:13-3, a disorderly persons offense.

       Therefore, we reverse the trial court's order as it relates

to the alleged ineffective assistance of counsel pertaining to the

definition of "substantial" in the kidnapping instruction.                        We

remand for a hearing, at which trial and appellate counsel may be

questioned   about     whether    they    had    a     compelling   strategic     or

tactical reason for not objecting to the court's supplemental

instruction, and for not raising the issue on direct appeal.                    See

R. 3:22-10(b).

                                         C.

       We briefly address defendants' claims that their trial and

appellate counsel were ineffective by failing to request a specific

                                      20                                   A-4299-15T4
unanimity     charge   related   to   the   asportation   and   confinement

elements of kidnapping; and by failing to object to the jury's

access in the jury room to the Calero video.

                                      1.

      We alluded to the specific unanimity issue in Torres I, slip

op. at 41 n.9, noting that defendants had not raised it.           They now

contend a specific unanimity charge was required – in other words,

that all jurors must agree that the asportation element was

satisfied, or all jurors must agree that the confinement element

was satisfied – and their counsel were ineffective in failing to

assert that position.

      To provide effective assistance of counsel, an attorney is

not obliged "to anticipate that an otherwise valid jury instruction

would later be deemed improper . . . ."            Funchess v. Wainwright,

772 F.2d 683, 691 (11th Cir. 1985).          Although a creative advocate

may   offer   novel    legal   theories,    the   constitutional   right    to

effective assistance of counsel "does not require counsel to

forecast changes or advances in the law . . . ."          Lilly v. Gilmore,

988 F.2d 783, 786 (7th Cir. 1993).            "[C]ounsel is normally not

expected to foresee future new developments in the law . . . ."

Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. 1981). Thus, courts

"have rejected ineffective assistance claims where a defendant

'faults his former counsel not for failing to find existing law,

                                      21                             A-4299-15T4
but for failing to predict future law' and have warned 'that

clairvoyance   is   not      a    required   attribute   of   effective

representation.'"   Bullock v. Carver, 297 F.3d 1036, 1052 (10th

Cir. 2002) (quoting United States v. Gonzalez-Lerma, 71 F.3d 1537,

1542 (10th Cir. 1995)).

     In view of these principles, we need not decide whether

unanimity as to asportation or confinement is required by law.

Trial and appellate counsel's failure to urge that position was

not ineffective because we are aware of no case – and defendants

cite none – that directly holds such unanimity is required; and

the model jury charge does not adopt that view.3     Rather, the model

jury charge repeatedly utilizes the phrase "and/or" in discussing

the asportation and confinement elements.        See Model Jury Charge

(Criminal),    "Kidnapping       (N.J.S.A.   2C:13-1(b)(1)    to     (3))"

(instructing jurors to consider four factors to determine whether

the "removal . . . and/or confinement . . . was substantial"); see

also State v. R.B., 183 N.J. 308, 325 (2005) (stating that "insofar

as consistent with and modified to meet the facts adduced at trial,



3
  Were unanimity required, the Supreme Court in Jackson arguably
would have been unwilling to tolerate the uncertainty as to whether
the jury in that case found asportation or confinement.         See
Jackson, 211 N.J. at 414 (affirming conviction although the Court
could not "discern whether the jury based its verdict on the
victim's removal by a 'substantial distance,' or his 'substantial
confinement'").

                                    22                             A-4299-15T4
model jury charges should be followed and read in their entirety

to the jury").      The verdict sheet utilized "or," which correctly

simplified the "and/or" phrasing, as no one argues that a unanimous

jury must find both asportation and confinement.

      In sum, the failure to raise the specific unanimity issue

does not constitute ineffective assistance of counsel.             A specific

unanimity charge would have extended existing law, and revised the

model charge.

                                        2.

      We next consider defendants' argument that their trial and

appellate    attorneys     were   ineffective     because   they   failed    to

contend that the jury's unrestricted access to the Calero video

violated State v. Burr, 195 N.J. 119, 134 (2008) (disapproving

"allowing a jury to have unfettered access to videotaped witness

statements" in the jury room during deliberations); see also State

v.   A.R.,   213    N.J.   542,   560    (2013)   (expressly   disapproving

"unfettered access by the jury to video-recorded statements of

witnesses or a defendant during its deliberations").

      "The danger posed is that the jury may unfairly emphasize

. . . videotaped statements over other" evidence and testimony

presented at trial.        Burr, 195 N.J. at 134; see also A.R., 213

N.J. at 546.       To combat any prejudice to the defense, the Court



                                        23                            A-4299-15T4
required, among other precautions, "any playback of the videotape

must occur in open court . . . ."         Burr, 195 N.J. at 135.

     Here, the playback of the videotaped pretrial statement of

defendants' assault victim did not occur in open court. The jurors

asked to review the statement, and were provided audio visual

equipment to view the tape in the jury room.             Torres II, slip op.

at 7-8, 16 n.6.      Defendants' trial attorneys did not object.              In

fact,   Esterlin's    attorney    consented   to   it.     Id.    at   16   n.6.

Defendants' appellate attorneys did not raise the issue on direct

appeal.

     Defendants      argue   those   decisions     could    not    have     been

strategic, because the statement "dealt a fatal blow to the

defense."    However, defendants did not provide a copy of the video

for our review.      Conceivably, Calero's demeanor raised questions

about his credibility.           Also, Calero contended, favorably to

defendants, that Muniz was defendants' planned getaway driver, not

their victim.   Torres I, slip op. at 9.      Perhaps it was a strategic

decision to permit the jury unfettered access to Calero's recorded

statement.

     In any event, we need not decide whether defendants' attorneys

performed deficiently on this score, because defendants have not

demonstrated prejudice.       See State v. Gaitan, 209 N.J. 339, 350

(2012) (stating courts are permitted to "examine first whether a

                                     24                                A-4299-15T4
defendant has been prejudiced, . . . and if not, to dismiss the

claim   without     determining    whether    counsel's     performance         was

constitutionally deficient").         The potential that the jury gave

undue weight to the recorded statement – the evil that the Burr

and A.R. rule is designed to combat – was reduced by the complete

playback of Calero's in-court testimony, which contradicted the

recorded statement.

     In sum, we affirm the denial of PCR on the issue of the jury's

unfettered access to Calero's recorded statement.

                                      D.

     Defendants' remaining arguments lack sufficient merit to

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

     Affirmed      in   part.    Reversed    in   part.     Remanded      for    an

evidentiary     hearing     on    defendants'     claims    of   ineffective

assistance    of   trial   and   appellate    counsel,     limited   to     their

failures with respect to the trial court's erroneous instruction

on the meaning of "substantial."




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