                                NOT FOR PUBLICATION WITHOUT THE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-5301-15T4


STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ANDREW E. JOHNSON, JR.,

     Defendant-Appellant.
__________________________

                   Submitted December 6, 2018 – Decided August 9, 2019

                   Before Judges O'Connor and DeAlmeida.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 13-04-1422.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michele A. Adubato, Designated Counsel,
                   on the briefs).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Sara M. Quigley, Deputy Attorney
                   General, of counsel and on the briefs).

                   Appellant filed a pro se supplemental brief.
PER CURIAM

      A jury convicted defendant Andrew E. Johnson, Jr. of two counts of first-

degree armed robbery, N.J.S.A. 2C:15-1; three counts of second-degree

conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; one count of

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); three counts of

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); three

counts of second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a); one count of third-degree aggravated assault, N.J.S.A.

2C:12-1(b)(2); three counts of third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(d); one count of third-degree attempted

theft, N.J.S.A. 2C:20-2(b)(2)(d); five counts of fourth-degree aggravated assault

(pointing a firearm), N.J.S.A. 2C:12-1(b)(4); three counts of fourth-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and one count of fourth-

degree criminal mischief, N.J.S.A. 2C:17-3(a)(1).

      After merging certain convictions, defendant was sentenced to an

aggregate term of forty-one years in prison.        Defendant appeals from his

convictions and sentence. In counsel's brief, defendant raises the following

points for our consideration:

            POINT I: DEFENDANT'S PRETRIAL MOTION
            FOR SEVERANCE OF THE ROBBERY COUNTS

                                                                        A-5301-15T4
                                       2
            SHOULD HAVE BEEN GRANTED BY THE
            COURT.

            POINT II: THE OUT-OF-COURT POLICE
            IDENTIFICATIONS MADE UNDER
            IMPERMISSIBLY SUGGESTIVE
            CIRCUMSTANCES SHOULD HAVE BEEN
            EXCLUDED FROM EVIDENCE.

            POINT III: COMMENTS MADE BY THE
            PROSECUTOR DURING THE SUMMATION
            CONCERNING FACTS NOT IN EVIDENCE WERE
            GROSSLY PREJUDICIAL AND DEPRIVED
            DEFENDANT OF A FAIR TRIAL.

            POINT IV: THE ADMISSION OF CERTAIN
            INFLAMMATORY EVIDENCE DEPRIVED
            DEFENDANT OF A FAIR TRIAL.

            POINT V: IT WAS ERROR FOR THE
            SENTENCING COURT TO FAIL TO MERGE
            CONSPIRACY AND AGGRAVATED ASSAULT
            WITH THE ROBBERY OFFENSES.

            POINT VI: THE AGGREGATE SENTENCE OF
            THIRTY-SEVEN YEARS WITH EIGHTY-FIVE
            PERCENT PAROLE INELIGIB[I]LITY WAS
            EXCESSIVE AND SHOULD BE MODIFIED AND
            REDUCED.

      After the State filed its brief, defendant filed a supplemental letter brief

through counsel. The supplemental brief noted the State issued a subpoena to

obtain his cell phone records, which the State then used at trial to show he was

one of the perpetrators involved in the subject crimes. Counsel argues the State


                                                                         A-5301-15T4
                                        3
should have obtained such records by securing a search warrant, and that its

failure to do so warrants a reversal of his convictions. This issue was not raised

before the trial court.

         In his supplemental pro se brief, defendant advances the following three

arguments, although his second and third points were raised in counsel's initial

brief:

               POINT I: TRIAL COURT'S REPEATED USE OF
               THE AMBIGUOUS PHRASE "AND/OR" IN THE
               JURY INSTRUCTION ON POSSESSION OF A
               DEADLY WEAPON WAS PLAIN ERROR. (Not
               raised below).

               POINT II: THE TRIAL COURT ERRED IN THE
               DENIAL TO NOT [sic] SEVER THE INDICTMENT.

               POINT III: THE IDENTIF[I]CATION OF JARELL
               MARSON AND RICARDO RIVERA SHOULD
               HAVE BEEN SUPPRESSED DUE TO THE FACT
               THEY WERE THE PRODUCT OF COERCION AND
               NOT INDEPENDENTLY MADE BUT IMPOSED
               ON THEM BY THE POLICE.

         Having reviewed the briefs, the record, and applicable legal principles, we

affirm the convictions. For the most part, we affirm defendant's sentence;

however, we determine certain counts must merge with others and the sentences

imposed on them must be vacated. We remand this matter for correction of the

judgment of conviction.


                                                                           A-5301-15T4
                                          4
                                          I

      We summarize the pertinent evidence relevant to the claims raised on appeal.

Co-defendant Ricardo Rivera, Jr., testified that he, defendant, and co-defendant

Jarell A. Marson were friends and, on August 2, 2012, carried out a plan to rob a 7-

Eleven in Cherry Hill for the purpose of stealing money. Consistent with that plan,

Rivera waited in his car as the getaway driver, while defendant and Marson entered

the 7-Eleven to execute the robbery. When defendant and Marson returned to the

car, they told Rivera they stole $300 from the cash register. Rivera was given sixty

dollars and the other two split the remaining proceeds taken from the register.

      Marson also testified that he and defendant entered the 7-Eleven between

11:00 p.m. and midnight. When they entered the store, he was carrying a metal pipe

and defendant a gun, and their faces were covered. While defendant pointed the gun

at a clerk and Marson held up the pipe "like a bat," defendant demanded the clerk

tell them where the safe was located. When the clerk did not respond, defendant hit

the clerk's head with the gun and Marson struck him on the head with the pipe.

      The clerk fell to the floor and began bleeding from the back of his head.

Notwithstanding his condition, defendant grabbed the clerk by his arm, dragged him

to the back of the store where an office was located, and demanded the clerk reveal

the location of the safe. The clerk managed to get up, go to, and open the cash


                                                                            A-5301-15T4
                                         5
registers. Marson grabbed money from the registers, and he and defendant ran from

the store and got into Rivera's car. The clerk's testimony of what occurred in the 7-

Eleven was consistent with Marson's, although the clerk added that because they

were masked, he could not identify his assailants. The clerk further noted he called

the police after Marson and defendant ran from the store.

      Rivera testified that after defendant and Marson robbed the 7-Eleven, the three

discussed robbing a Wendy's in the same municipality. They decided to carry out

their plan at 2:00 a.m., when the restaurant was closing. Like the first robbery, they

agreed Rivera would wait in his car nearby as the other two entered and robbed the

Wendy's. Marson testified that when he and defendant got to the restaurant, Marson

was carrying the same pipe and defendant the same gun they had when they entered

the 7-Eleven earlier. Both were dressed in dark clothing and their faces were

covered.

      Marson further testified that when he and defendant crossed the parking lot

toward one of the doors at Wendy's, defendant pointed the gun at and Marson held

the pipe in a "swinging manner" near an employee who was outside of the building,

and "pretty much, like, forced him back into the building." Other employees coming

out of the door were forced back inside, as well, as defendant pointed the gun at




                                                                             A-5301-15T4
                                          6
them. Marson told who he believed was the manager of Wendy's to turn off the

alarm. Meanwhile, defendant brandished the gun at the other employees.

      Marson testified he and defendant went to an office in the restaurant and told

the manager to open the door, but the manager did not have the key. Marson hit his

pipe against and defendant shot through a window in the door, causing the window

to break and enabling the manager to reach through the window to open the door

from the inside. While pointing a gun at them, defendant made the employees and

manager go into the office. Then, while specifically pointing the gun at the manager,

defendant told him to open the safe. The manager complied and pulled money out

of the safe. Defendant and Marson took approximately $500 of the money removed

from the safe, fled the restaurant, and got into Rivera's car, which was parked at a

predetermined location. Rivera was given a portion of the robbery proceeds, and

Marson and defendant split the rest.

      Testimony provided by Wendy's manager was essentially consistent with

Marson's; the manager added he contacted the police as soon as Marson and

defendant fled. However, because defendant and Marson's faces were covered, the

victims of the robbery could not identify them.

      Marson testified that on August 5, 2012, he, defendant, and Rivera discussed

robbing another entity. Rivera again agreed to be the driver of the getaway car.


                                                                            A-5301-15T4
                                         7
While the three were riding in Rivera's car, they spontaneously decided to rob

another 7-Eleven in Cherry Hill, which was different from the one they had robbed

three days before. Rivera dropped Marson and defendant off and the two approached

the store.

      Marson noted that, like the first two robberies, he and defendant wore dark

clothing and their faces were covered. Marson carried the same metal pipe and

defendant the same gun. As defendant reached for the door handle, Marson saw a

clerk inside of the store and noticed his "arm reach down" to press what Marson

surmised was an alarm. Marson then heard an alarm go off. Meanwhile, defendant

had tried to but was unable to open the door because it was locked. Marson and

defendant ran to where Rivera was waiting and the three drove off.

      Police officer Joseph Hurley testified he was in his patrol car when he

observed Rivera's car stopped in the middle of a road, although the car proceeded

forward when Hurley's patrol car got behind Rivera's. Then, at one point, Rivera

took off at a high rate of speed. The officer activated his overhead lights and siren,

but Rivera did not stop and a chase ensued.

      Eventually, Rivera slowed down and defendant jumped out of the car. Rivera

then brought his car to a stop. By then, the back-up assistance Hurley had called for




                                                                             A-5301-15T4
                                          8
arrived. When the police approached the car, they observed a gun on the floor in

front of the passenger's seat and arrested Rivera and Marson.

      In addition to other evidence, a search of the car revealed a metal pipe, as well

as a cell phone that belonged to defendant. Marson and Rivera ultimately gave

statements confessing their and implicating defendant's involvement in the two

robberies and the attempted robbery. Marson and Rivera subsequently pled guilty

to various charges and, as part of their plea agreement, consented to testify against

defendant.

                                          II

                                          A

      As noted, among other charges, defendant was convicted of committing one

count of first-degree robbery at 7-Eleven on August 2, 2012, and one count of first-

degree robbery at Wendy's the following day. Although charged with first-degree

robbery in connection with the incident at 7-Eleven on August 5, 2012, he was found

not guilty of that offense; however, he was found guilty of third-degree attempted

theft. Before trial, defendant unsuccessfully moved to sever the three counts of

robbery.

      On appeal, defendant contends the court erred when it denied his motion.

Defendant maintains the offenses arising out of each incident should have been tried


                                                                              A-5301-15T4
                                          9
separately, so that the jury would not conclude he had a propensity to engage in

criminal conduct. He claims that at the time the motion was argued, it was known

the co-defendants were willing to provide testimony of defendant's participation in

all three incidents. Therefore, in order to prove defendant guilty of any one of the

robberies, it was unnecessary to introduce evidence of the other two. The State

argues the trial court did not err when it denied the severance motion, thus permitting

evidence of all three robberies at trial, because such evidence established motive,

common scheme, plan, and defendant's identity, given the jury might have rejected

the co-defendants' testimony on credibility grounds.

      Whether a severance motion should be granted is within the trial court's

discretion, and we defer to that decision, absent an abuse of that court's discretion.

State v. Chenique-Puey, 145 N.J. 334, 341 (1996). Generally, offenses "of the same

or similar character" or "based on the same act or transaction or on 2 or more acts or

transactions connected together or constituting parts of a common scheme or plan"

may be joined together in the same indictment. R. 3:7-6. However, if it "appears

that a defendant . . . is prejudiced by a permissible or mandatory joinder of offenses

. . . in an indictment or accusation the court may order an election or separate trials

of counts . . . or direct other appropriate relief." R. 3:15-2(b).




                                                                              A-5301-15T4
                                          10
      "Central to deciding whether joinder is prejudicial is 'whether, assuming the

charges were tried separately, evidence of the offenses sought to be severed would

be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" State

v. Oliver, 133 N.J. 141, 150-51 (1993) (quoting State v. Pitts, 116 N.J. 580, 601-02

(1989)). See also Pressler & Verniero, Current N.J. Court Rules, cmt. 2.3.1 on R.

3:15-2 (2019) ("[S]eparate crimes have a sufficient nexus to each other to justify

joinder if proof of one crime would be admissible as proof of the other pursuant to

N.J.R.E. 404(b)."). If the evidence would be admissible at each trial, then the trial

court may try the counts together because the defendant "will not suffer any more

prejudice in a joint trial than he would in separate trials . . . ." State v. Coruzzi, 189

N.J. Super. 273, 299 (App. Div. 1983).

      Under N.J.R.E. 404(b), evidence of other crimes, wrongs or acts is

inadmissible to prove a "defendant's criminal disposition as a basis for establishing

guilt of the crime charged." State v. Covell, 157 N.J. 554, 563 (1999) (citing State

v. Stevens, 115 N.J. 289, 293 (1989)). However, evidence generally inadmissible

under N.J.R.E. 404(b) is expressly admissible to prove other facts in issue, such as

"motive, intent, plan, knowledge, identity, or absence of mistake or accident."

Covell, 157 N.J. at 563-64 (quoting Stevens, 115 N.J. at 293).




                                                                                A-5301-15T4
                                          11
       To be admissible, evidence otherwise excluded by N.J.R.E. 404(b) must

satisfy the four-part test set forth in State v. Cofield, 127 N.J. 328, 338 (1992).

Covell, 157 N.J. at 564. Thus, for evidence of other crimes or acts to be admissible,

such evidence must: (1) be relevant to a material issue; (2) be similar in kind and

reasonably close in time to the offense charged; (3) be clear and convincing; and (4)

have a probative value that outweighs its apparent prejudice. Cofield, 127 N.J. at

338.

       Here, the trial court analyzed and applied the Cofield factors. The court found

the evidence of the crimes committed during the three incidents clear and

convincing, and that the probative value of such evidence outweighed its prejudice,

given the evidence of the other incidents was relevant and material to identifying

defendant as one of the perpetrators. Specifically, the court noted all three incidents

occurred in physical and temporal proximity, shared a common motive, and bore

similar characteristics revealing a common scheme or plan. The court elaborated

upon those characteristics in its oral opinion, stating:

             [T]he three robberies are similar in character and are
             based on the same act[s] or transactions which
             constituted parts of a common scheme or plan, that
             plan being robbery. I note that all three robberies
             occur[red] within a five to ten mile range of each
             other. Each robbery included two males holding a gun
             and a metal [pipe] with the male wearing dark clothing


                                                                              A-5301-15T4
                                          12
             and masks to cover – each of the males wearing dark
             clothing and masks to cover their faces.

                    The choice of victims appeared to be
             commercial establishments. The first two robberies
             took place within a two hour span and the first two
             were located approximately five miles apart from each
             other.

                   The victims in each robbery were threatened
             with a hand gun and metal [pipe] and both of these
             weapons were used to gain access to money.

                   The third robbery occurred approximately three
             days later. It occurred on August fifth and again
             involved another commercial establishment using the
             same weapons and the same common scheme. . . .

                   The executions of these three crimes are of a
             similar fashion. All three defendants had an
             assignment for the execution of these robberies and
             the same weapons were used in each of these events.
             For an example[,] each party [was] assigned to enter
             with a weapon[] and take money or drive the getaway
             vehicle . . . .

                    You have here robberies, two of which occurred
             within two hours of one – of each other. You have the
             third one occurring within three days of the two. And
             as I said in each of these robberies each defendant had
             an assigned job for the execution of each of these
             robberies. And again in each robbery the assailants
             covered their faces and used weapons . . . .

In addition, the court found Rivera's and Marson's anticipated testimony at trial

would clearly establish defendant's role in all three incidents.


                                                                        A-5301-15T4
                                         13
      In our view, for the reasons expressed in its decision, the trial court's

admission of evidence of all three incidents was not an abuse of discretion under

Cofield. They bore similarities that made joinder of all counts related to the two

robberies and the attempted robbery appropriate, in order to show the robberies were

committed by the same individuals, which included defendant.

      The similarities included that Rivera drove the getaway car while Marson and

defendant carried out the robberies and attempted robbery at similar commercial

establishments in the same municipality. The first two robberies were just hours

apart and the third incident occurred just two days later. Marson wielded a metal

pipe and defendant a gun during each incident. Both were dressed in black and had

covered their faces.

      Even if the trial on any one of the incidents had been tried separately, evidence

of the other two incidents would have been admissible under N.J.R.E. 404(b),

because such evidence was probative of defendant's identity, plan, and scheme to

commit the other robberies. See State v. Morton, 155 N.J. 383, 451-52 (1998).

      Defendant argues that, given Rivera and Marson were going to testify and

their anticipated testimony would establish defendant's role in any one of the

incidents, there was no need to introduce evidence of the other two incidents.

Therefore, he should have been tried for only one incident at a time. We disagree.


                                                                              A-5301-15T4
                                         14
      The jury may not have found the co-defendants' testimony defendant

participated in any one of the incidents credible. Therefore, other evidence to show

a common scheme or similarity among the incidents was necessary. Such evidence

included the location and the timing of the other incidents, the weapons used, and

the role and actions of each perpetrator. Therefore, we reject defendant's contention

the trial court erred by failing to sever the three counts of robbery.

                                           B

      Defendant contends the police coerced the co-defendants into testifying at

trial that defendant was one of the culprits involved in the three incidents. We reject

this contention as wholly without support in the record. Defendant also contends the

police failed to adhere to the holding in State v. Henderson, 208 N.J. 208 (2011), by

impermissibly suggesting to the co-defendants that defendant was involved in the

three incidents. We reject this contention as well, because it was well established

all three defendants frequently socialized before the subject incidents and were

highly familiar with each other. No amount of police suggestiveness could have

influenced the co-defendants' identification of defendant.

                                           C

      For the first time on appeal, defendant argues that certain comments made by

the prosecutor during her summation were grossly prejudicial and deprived him of a


                                                                              A-5301-15T4
                                          15
fair trial. Because this argument was not raised below, we consider it under a plain

error standard of review, and will reverse only if the error was "clearly capable of

producing an unjust result." State v. Macon, 57 N.J. 325, 337 (1971) (quoting R.

2:10-2).

      Before reciting the subject comments, we set forth an excerpt from defendant's

summation:

             Mr. Johnson was not involved in these crimes with
             Jarell Marson or Ricardo Rivera. There is no reliable
             testimony before you as to who that third person was,
             because it was not Mr. Johnson. There is no DNA
             evidence, there is no fingerprint evidence, although
             [from] my recollection of the testimony, and it may
             actually I think have showed up in the videos, is that
             clearly with regard to the first incident at the 7-Eleven
             on August 2nd and with regard to what occurred at
             Wendy's also on August 2nd of 2012, there did not
             appear to be gloves worn and there did not appear to
             be any fingerprint evidence.

                   ....

             Is there any testimony at all that attempts were made
             to fingerprint the door handles? Were there any prints
             at all acquired? Were there any prints attempted of
             the phone in the center console? Would that evidence
             not have been helpful? And if – or would it not at
             least have been helpful to know that it didn't exist?
             But we will never know that because they didn't do
             their job.

                   ....


                                                                           A-5301-15T4
                                        16
            Again, we'll never know the truth. The police made
            up their minds. They ignored the other names. How
            unreasonable is it for them to investigate and do this,
            do it right? They failed to fingerprint the phone. . . .
            The lack of professionalism, the intimidation, the
            coercion, that's the problem with this case. And, that's
            – and the problem is two self-motivated liars who are
            willing to sacrifice an innocent man so they can get
            out earlier.

      The comments the prosecutor made that defendant contends were

prejudicial are:

            Well ask yourself, I've tried enough of these cases and
            when I get fingerprints, this is always what's said.
            Well his fingerprint's in the car, but all that shows you
            is that he was sitting in the car at some point. Well his
            DNA's on a water bottle, but all that shows you is that
            at some point he drank from that water bottle. It
            doesn't put him in the car, fingerprints don't put him in
            the car on the fifth [of August], or the second [of
            August]. DNA on a water bottle doesn't put him in the
            7-Eleven, or the Wendy's, or the second 7-Eleven on
            any date.

      Defendant's specific objection to the prosecutor's comments is that the

prosecutor made reference to her personal experiences, and belittled defendant's

claim there was no corroborative physical evidence linking him to the crimes.

The State counters that the prosecutor was merely responding to defendant 's

criticism of the State for failing to gather fingerprint and DNA evidence.




                                                                        A-5301-15T4
                                      17
      Even if a prosecutor's comment during summation exceeds the bounds of

proper conduct, "[a] finding of prosecutorial misconduct does not end a

reviewing court's inquiry because, in order to justify reversal, the misconduct

must have been 'so egregious that it deprived the defendant of a fair trial.'" State

v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83

(1999)). "Our task is to consider the 'fair import' of the State's summation in its

entirety."   State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v.

Wakefield, 190 N.J. 397, 457 (2007)).

      Having reviewed the record, we are satisfied the prosecutor's comment

observing that defendant's argument has been raised by defendants in other

matters did not deprive him of a fair trial. The thrust of the prosecutor's remarks

– that DNA or fingerprint evidence would not have been probative – was fair

comment made in response to defendant's summation. See State v. Engel, 249

N.J. Super. 336, 379 (App. Div. 1991) (holding the prosecutor's statements in

response to an attack upon the integrity of the State's investigation was not

error). We are satisfied the prosecutor's comments here do not provide any basis

to overturn the verdicts.




                                                                           A-5301-15T4
                                        18
                                       D

      Defendant attacks the court's failure to merge certain offenses. With

respect to the incident on August 5, 2012, among other things, the jury found

defendant guilty of second-degree conspiracy to commit robbery and third-

degree attempted theft.    The court did not merge the latter two offenses.

Defendant was sentenced to a seven-year term of imprisonment for the

conspiracy conviction and to a four-year term for the attempted theft conviction.

The court ordered both convictions to run consecutively to the fifteen-year term

of imprisonment imposed for the first-degree robbery committed at the 7-Eleven

on August 2, 2012, as well as to the fifteen-year term of imprisonment imposed

for the first-degree robbery committed at Wendy's, on August 3, 2012.

      On appeal, defendant maintains the trial court should have merged the

conviction for conspiracy with the one for attempted theft. The State agrees

both offenses should have been merged, but contends the conviction for

attempted theft should have been merged with the one for conspiracy.

      If a defendant has been convicted of an offense and conspiracy to commit

the same offense, the conspiracy conviction merges with the completed offense.

State v. Soltys, 270 N.J. Super. 182, 189 (App. Div. 1994); State v. Hardison,

99 N.J. 379, 385-86 (1985). The reason the conspiracy conviction merges with


                                                                        A-5301-15T4
                                      19
the one for the substantive offense is that the "conviction of the completed

offense will adequately deal with the conduct." Hardison, 99 N.J. at 386.

However, if a defendant is convicted of conspiracy to commit an offense and a

lesser-included offense, the conviction of the lesser included offense merges

with the conviction for conspiracy to commit such offense. See State v. Connell,

208 N.J. Super. 688, 695 (App. Div. 1986).

      Here, it is not disputed a theft or attempted theft is required for a robbery

conviction. State v. Farrad, 164 N.J. 247, 257 (2000). Both theft and attempted

theft are lesser-included offenses of the crime of robbery under N.J.S.A. 2C:1-

8(d), because both are "established by proof of the same or less than all the facts

required to establish the commission of the offense charged." N.J.S.A. 2C:1-

8(d)(1). Accordingly, here, the conviction for attempted theft merges with that

of conspiracy to commit robbery, and the sentence imposed for the conviction

of attempted theft must be and is vacated.

      Defendant was convicted of various aggravated assault charges arising out

of the first two incidents. Defendant argues the convictions for aggravated




                                                                          A-5301-15T4
                                       20
assault arising out of these two incidents should have been merged with the

corresponding robbery conviction arising out of each robbery.1

      The State agrees the aggravated assault convictions should merge, with

the exception of counts three and four, which pertain to two of the three

aggravated assaults committed at the 7-Eleven on August 2, 2012. The State

maintains those two assaults were unrelated to the commission of the robbery.

We disagree.

      Our review of the record reveals the assaults charged in counts three and

four were inflicted to effectuate the robbery; therefore, these two counts must

merge with the robbery conviction that arose out of the incident at the 7-Eleven

on August 2, 2012. Therefore, counts three, four, and five shall merge with

count one, the count charging defendant with committing a robbery at the 7-

Eleven on August 2, 2012. Counts twelve, thirteen, fourteen, and fifteen shall

merge with count ten, the count charging defendant with committing a robbery

at Wendy's. The sentences imposed for counts three, four, five, twelve, thirteen,

fourteen, and fifteen are vacated. As a practical matter, the merger of these seven



1
  The counts charging defendant with aggravated assault that arose out of the
incident at 7-Eleven on August 2, 2012 are three, four, and five. Those counts
charging him with this offense that arose out of the incident at Wendy’s on
August 3, 2012 are counts twelve, thirteen, fourteen, and fifteen.
                                                                          A-5301-15T4
                                       21
counts does not affect the aggregate sentence, as the court ordered the sentences

imposed for aggravated assault to run concurrently.

      Finally, defendant contends his sentence was excessive. Defendant was

sentenced to an aggregate term of forty-one years. The consecutive sentences

were: fifteen years for first-degree robbery of the 7-Eleven on August 2, 2012

(count one); fifteen years for first-degree robbery of Wendy's on August 3, 2012

(count ten); four years for third-degree attempted theft at the 7-Eleven on August

5, 2012 (count twenty-one "A"); and seven years for second-degree conspiracy

to commit robbery at the 7-Eleven on August 5, 2012 (count twenty-two). With

the merging of the two latter convictions, defendant's aggregate term of

imprisonment is thirty-seven years; the sentences on the remaining counts are to

run concurrently.

      We are satisfied from our review of the record that the sentence was not

excessive. As for the consecutive terms of imprisonment, the court sentenced

defendant in the middle range for the first-degree offenses and at essentially the

midpoint range for the second-degree offense.

      Although defendant was only nineteen years of age when he committed

the subject offenses and had not been convicted of any offenses as an adult, the

trial court considered defendant's juvenile history. The court noted defendant


                                                                         A-5301-15T4
                                       22
had been adjudicated a delinquent for burglary in 2008 and robbery in 2010, and

served time for the latter offense at the State Home for Boys in Jamesburg for

approximately thirteen months before being released on juvenile parole. While

on parole he committed the subject offenses.

      The court properly weighed and considered each aggravating and

mitigating factor, see N.J.S.A. 2C:44-1(a) and (b), as well as the factors in State

v. Yarbough, 100 N.J. 627, 643-44 (1985). The court's reasons for imposing the

sentence were supported by competent and credible evidence in the record. See

State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Cassady, 198 N.J. 165, 180

(2009) (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)).

      We have considered defendant's remaining arguments, and determine they

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

      The convictions are affirmed.         The sentences are affirmed with the

exception that the conviction for attempted theft shall merge with the conviction

for conspiracy to commit robbery, and the sentence imposed for the conviction

of attempted theft is vacated. As for the aggravated assault convictions, counts

three, four and five shall merge with count one, and counts twelve, thirteen,

fourteen, and fifteen shall merge with count ten. The sentences imposed for

counts three, four, five, twelve, thirteen, fourteen, and fifteen are vacated. The


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                                       23
matter is remanded to the trial court so it may correct the judgment of conviction

in accordance with this opinion.

      Affirmed in part, and remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.




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