                             NOT FOR PUBLICATION WITHOUT THE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-0141-18T1

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

       v.

TONY ELI,

     Defendant-Appellant.
_______________________________

                Argued telephonically May 4, 2020 –
                Decided June 4, 2020

                Before Judges Sabatino and Sumners.

                On appeal from the Superior Court of New Jersey, Law
                Division, Middlesex County, Indictment No. 15-10-
                1241.

                Douglas R. Helman, Assistant Deputy Public Defender,
                argued the cause for appellant (Joseph E. Krakora,
                Public Defender, attorney; Douglas R. Helman, of
                counsel and on the brief).

                Joie   D.    Piderit,  Special    Deputy Attorney
                General/Acting Assistant Prosecutor, argued the cause
                for respondent (Christopher L.C. Kuberiet, Acting
              Middlesex County Prosecutor, attorney; Joie D. Piderit,
              of counsel and on the brief).

PER CURIAM

        Tried by a jury, defendant Tony Eli was found guilty of two counts of

fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2), one count of third-degree

resisting arrest, N.J.S.A. 2C:29-2(a)(3), and one count of second-degree escape,

N.J.S.A. 2C:29-5(a). The trial court imposed an aggregate custodial sentence of

six years, with a two-and-a-half-year parole disqualifier.

        The offenses stemmed from a June 9, 2015 incident in which Eli fled from

a United States Marshal seeking to effectuate a warrant for his arrest. Eli's son,

co-defendant Joshua Evans ("Evans"), was also convicted of hindering, assault,

and facilitating escape for his role in the incident. 1

        Eli contends that repeated references to his open arrest warrant during the

trial were improper and unduly prejudicial.           He further argues the jury

instructions the court gave on escape and self-defense failed to adequately

explain material aspects of those concepts, warranting reversal. Lastly, he

argues his sentence is excessive and that, in particular, the trial court did not




1
    Evans has not participated in this appeal.


                                                                           A-0141-18T1
                                          2
sufficiently justify the imposition of consecutive sentences for resisting arrest

and escape and should have merged those offenses.

      For the reasons that follow, we affirm defendant's convictions, but remand

for resentencing.

                                       I.

      The State's witnesses at trial, who were not countered by any defense

witnesses, established the following facts.

      On June 9, 2015, Eli was staying at a hotel in Iselin with several family

members. Eli and Evans left the hotel late in the evening with Eli's wife, Debbie

Evans, to pick up someone at the airport.

      Before Eli and his family returned, at approximately 5:00 A.M., ten

plainclothes officers with the United States Marshals Service Fugitive Task

Force arrived at the hotel to enforce an open warrant for Eli's arrest. Deputy

United States Marshal Chris Manna was among the officers on the task force

that evening.

      At trial, hotel night clerk John Maltz testified that Manna and five other

officers approached him at the reception desk and asked if he knew where Eli

was. Maltz told them that Eli had gone out and provided them with Eli's room

number.


                                                                         A-0141-18T1
                                        3
      Manna testified that he and the other officers went up to the room, where

they found a teenager and a young child, but not Eli. The officers decided to set

up surveillance around the hotel and wait for Eli to return. A team of officers

positioned themselves in the front and rear parking lots. Three officers remained

in the hotel room, while Manna sat next to Maltz at the front desk.

      Shortly after 6:00 A.M., Eli entered the hotel lobby with his wife, son, and

an unidentified fourth party. Manna recognized Eli, and Maltz confirmed his

identity.

      Using his cell phone, Manna informed the officers in the hotel room that

Eli had entered the lobby and told them to come down to assist with the arrest.

Manna then followed the group towards the elevator.

      Manna testified that he approached the group as they boarded the elevator,

identified himself as a police officer, and pulled his badge out from underneath

his shirt. He told Eli that he had a warrant for his arrest and directed everyone

to get off the elevator.

      Eli initially complied and placed his hands against the wall next to the

elevator.2 Manna testified that his intention was to wait there with Eli for the


2
 The activities by the elevators were filmed by a hotel surveillance camera, as
were the activities in the lobby with another surveillance camera. Relevant


                                                                          A-0141-18T1
                                        4
other officers to arrive. As they were waiting, Manna noticed that Evans was

fidgeting and reaching into his pockets, so he told him to open his hands. When

Evans failed to comply, Manna attempted to grab his hands while repeatedly

telling Evans, "Let me see your hands."         Hearing the increasingly loud

interaction, Maltz ran outside to flag down the other officers.

      As Manna turned to deal with Evans, Eli took his hands off the wall and

began running around the corner towards the hotel's front entrance. Manna left

Evans and pursued Eli, catching up to him near the front door. Manna grabbed

Eli, tackled him to the floor, placed him face down, climbed on top of him, and

began to handcuff him.

      Both Evans and his mother took turns rushing at Manna, attempting to

push him off Eli. Manna testified that he put his arm out in self -defense and

repeatedly told them to get back, but Evans continued to attack him. Eli began

to struggle with Manna, throwing his elbows and attempting to rise off the

ground. Manna directed him to stay down and put his hands behind his back,




portions of the surveillance footage were played for the jury. The parties have
supplied us on appeal with a recording of the surveillance footage, and we have
viewed it at their urging. The recording is substantially consistent with the
testimony of the State's witnesses describing the events.
                                                                       A-0141-18T1
                                        5
but Eli refused to comply. Evans roamed around the lobby, circling Manna

while his father struggled with him on the ground.

       Eli then broke free from Manna, got up off the ground, and ran towards

the front door of the hotel. As Manna gave chase, Evans stuck his foot out in

an unsuccessful attempt to trip him. Manna caught up to Eli at the second set of

lobby doors, shoving him from behind. Eli went face first into the front sliding

door, then fell to the ground. Manna jumped on top of Eli and began to handcuff

him.

       At that point, backup personnel arrived, and the team of officers arrested

Eli. Evans and his mother were also taken into custody. Manna testified that he

suffered injuries to his neck, back, and shoulders during the altercation, but did

not seek medical attention.

       The indictment charged Eli with fourth-degree resisting arrest, N.J.S.A.

2C:29-2(a)(2) (Count Two); third-degree resisting arrest, N.J.S.A. 2C:29-

2(a)(3) (Count Four); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2)

(Count Six); and second-degree escape, N.J.S.A. 2C:29-5(a) (Count Nine).3




3
  There is no indication that Eli was charged with any federal offenses arising
out of this encounter with federal officers.


                                                                          A-0141-18T1
                                        6
The indictment also charged Eli's son, Evans, with obstruction of justice,

resisting arrest, hindering apprehension, assault, and facilitating escape. 4

        Eli and Evans were tried in absentia by a jury over three days in May 2018.

Maltz and Manna testified for the State, and the security video footage of the

incident was shown to the jury.

        After the State's evidence was presented, Eli's counsel moved for a

judgment of acquittal on the escape count, which was denied.

        The jury found Eli guilty on all counts. Evans was convicted of hindering,

assault, and facilitating escape, but was acquitted on the obstruction of justice

count.5

        At sentencing, Eli renewed his motion on the escape count, moving for a

judgment notwithstanding the verdict, which was also denied. Eli was then

sentenced to five years' imprisonment with thirty months' parole ineligibility on

Count Nine (second-degree escape), and one-years' imprisonment on Count Two

(resisting arrest) to be served consecutively. The court merged Counts Four and

Six into Count Nine.



4
    Eli's wife was also charged in the indictment, but she passed away before trial.
5
  The resisting arrest charge against Evans was dismissed during the charge
conference.
                                                                            A-0141-18T1
                                          7
This appeal followed.

                                II.

Eli presents the following arguments for our consideration:

      POINT I

      THE JUDGE ALLOWED THE STATE TO
      REPEATEDLY REFER TO THE OPEN WARRANT
      FOR ELI’S ARREST, AND FAILED TO OFFER A
      SATISFACTORY     LIMITING  INSTRUCTION,
      PREJUDICING ELI AND RENDERING HIS TRIAL
      UNFAIR

      POINT II

      THE JURY INSTRUCTIONS DID NOT PROPERLY
      EXPLAIN THE MATERIAL ELEMENTS OR
      DEFENSES OF THE CHARGES AGAINST ELI,
      WARRANTING REVERSAL

            A.    The judge did not adequately explain that
                  a completed 'arrest' is necessary for a
                  conviction for escape, thus failing to
                  explain a material element of the charge.

            B.    The judge gave the wrong self-defense
                  instruction for resisting arrest, prejudicing
                  Eli. (Not raised below)

      POINT III

      A REMAND FOR RESENTENCING IS REQUIRED
      BECAUSE THE JUDGE INEXPLICABLY ONLY
      MERGED TWO OF THE RESISTING ARREST
      COUNTS INTO THE ESCAPE COUNT, VIOLATED
      STATE   V.  YARBOUGH     BY   IMPOSING

                                                                  A-0141-18T1
                                 8
               CONSECUTIVE       SENTENCES,        AND
               IMPERMISSIBY   CONSIDERED     DISMISSED
               CHARGES IN FASHIONING THE SENTENCE.

We discuss these points, in turn.

                                          A.

      Eli argues the State’s multiple references before the jurors to his open

arrest warrant were unduly prejudicial under N.J.R.E. 404(b) and violated his

right to a fair trial. He further contends the trial judge failed to give an adequate

limiting instruction to the jury concerning these references. We reject these

contentions.

      The applicable standard of review of this evidential issue is well

established. Criminal trial court rulings on evidential admissibility are entitled

to a strong degree of deference and are reviewed under an abuse of discretion

standard. State v. Prall, 231 N.J. 567, 580 (2018). Such rulings are therefore

upheld unless "there has been a clear error of judgment." State v. J.A.C., 210

N.J. 281, 295 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "An

appellate court applying this standard should not substitute its own judgment for

that of the trial court, unless 'the trial court's ruling is so wide of the mark that a

manifest denial of justice resulted.'" Ibid. (quoting Brown, 170 N.J. at 147).




                                                                               A-0141-18T1
                                          9
      The pertinent evidence rules on this issue are N.J.R.E. 401 (relevance),

N.J.R.E. 403 (discretionary grounds for exclusion of relevant evidence), and

N.J.R.E. 404(b) (character proof). We are satisfied that the trial court adhered

to all of these rules. Even if we were to adopt defendant's contentions of error,

the alleged errors were not "clearly capable" of depriving him of a fair trial. R.

2:10-2.

      Case law instructs that evidence that a warrant was issued "might

necessarily be put before a jury in order to establish that the police acted

properly." State v. Marshall, 148 N.J. 89, 240 (1997). For instance, "[a] search

warrant can be referenced to show that the police had lawful authority in

carrying out a search to dispel any preconceived notion that the police acted

arbitrarily."   State v. Cain, 224 N.J. 410, 435 (2016).         Nevertheless, "a

prosecutor . . . may not repeatedly mention that a search warrant was issued by

a judge if doing so creates the likelihood that a jury may draw an impermissible

inference of guilt." Ibid.

      At a pretrial hearing in this case, defense counsel jointly objected to any

reference to arrest warrants occurring during the trial. The trial court ruled that

the open warrant for Eli was an integral fact in establishing the charge of

resisting arrest, because the State was required to prove that a law enforcement


                                                                           A-0141-18T1
                                       10
officer was effecting a lawful arrest and that Eli purposely attempted to prevent

him from effecting that arrest. See N.J.S.A. 2C:29-2. Relying on the New

Jersey Supreme Court's reasoning in Marshall, the trial judge concluded that it

would be insufficient and "frankly, ridiculous for the jury to just be told that the

police wanted to speak with the defendant; [it was] more than that." However,

the judge precluded the State from revealing to the jurors why the warrant was

issued.

      During trial, the prosecutor referenced the arrest warrant twice in opening

and twice in closing, in both instances to explain why the officers had been at

the hotel and what Manna said when he approached Eli. The warrant was

mentioned three times from Manna in response to questioning, again

establishing the basic facts surrounding the incident. In addition, questions

about the warrant were posed to Manna several times by defense counsel for

both Evans and Eli.

      On appeal, Eli argues that these references to the arrest warrant were

prejudicial and rendered his entire trial unfair, citing both Cain, 224 N.J. at 435-

36, and State v. Alvarez, 318 N.J. Super. 137, 148 (App. Div. 1999).

      In Cain, the prosecutor "mentioned the existence of a search warrant no

less than fifteen times" throughout the trial and repeatedly emphasized that a


                                                                            A-0141-18T1
                                        11
Superior Court judge had issued that warrant. 224 N.J. at 435. The Court held

that "[t]he constant drumbeat that a judicial officer issued a warrant" went

beyond what was necessary to demonstrate that police were acting with lawful

authority and had the "capacity to lead the jury to draw an impermissible

inference that the court issuing the warrant found the State's evidence credible."

Id. at 436.

      Similarly, the prosecutor in Alvarez made three references to an arrest

warrant for the defendant and six references to a search warrant, described as

being issued by a judge. 318 N.J. Super. at 147. We found the nume rous

references to both the arrest and search warrants, coming "directly out of the

mouth of the prosecutor," to be needlessly prejudicial, particularly because the

credibility of the officers' account was not at issue. Id. at 147-48.

      In this case, the existence of the arrest warrant was highly relevant under

N.J.R.E. 401 in explaining why the task force was at the hotel looking for Eli.

Unlike the prosecutors in Cain and Alvarez, who made numerous references to

the warrants as being issued by a judge, the State here only directly mentioned

Eli's arrest warrant in the course of providing a basic factual narrative of the

case during opening and closing. The prosecutor never described the warrant as

being issued by a judge and never elicited that detail from a witness during


                                                                          A-0141-18T1
                                       12
testimony. All other references to the arrest warrant were made either by Officer

Manna—when answering basic factual questions about the incident—or by

defense counsel.

      The defense's theory of the case was that Eli had no idea there was a

warrant for his arrest and did not know Manna was a real law enforcement

officer. During cross-examination, counsel for both Eli and Evans brought

Manna's credibility into question, particularly as to how he identified himself

and his purpose for being there when approaching Eli. Unlike in Alvarez, where

the credibility of the officers' account was not in question, this case required the

State to demonstrate that Manna and the rest of the task force were acting with

lawful authority, pursuant to a warrant. The court did not misapply its discretion

under N.J.R.E. 403 in declining to exclude the references, within the sensible

boundaries it had established.

      We also discern no transgression of the character proof limitations set

forth in N.J.R.E. 404(b). Even assuming, for purposes of discussion, that we

regard Eli's past conduct that led to the issuance of the federal warrant as a "prior

bad act" under Rule 404(b), the trial judge appropriately limited the references

to the warrant so as to guard against the jury inferring that Eli has a propensity

to violate the law.


                                                                             A-0141-18T1
                                        13
      Moreover, the judge provided the jury with a clear limiting instruction in

this regard. The judge explicitly told the jurors they must disregard the warrant,

which was something they "should not consider in any way, shape, or form,

except that it was basically part of the [federal officers'] procedure." Defense

counsel did not object to this instruction. There is no error, let alone plain error,

in this very clear instruction.

                                         B.

      Eli next contends the jury instructions did not adequately explain certain

material elements or defenses of the charges against him.

      First, he argues that the trial court failed to explain a material element of

the charge of escape, because it did not provide the jury with an adequate

definition of "official detention." Second, Eli contends the court erred in giving

the general self-defense instruction rather than the self-defense charge tailored

for resisting arrest, and that he was prejudiced by such error.

      In addressing these claims on appeal, we note that Eli did not object to the

jury instructions at trial, either in the charge conference or after the charge was

issued. This lack of objection narrows our scope of review. "A claim of

deficiency in a jury charge to which no objection is interposed 'will not be




                                                                             A-0141-18T1
                                        14
considered unless it qualifies as plain error . . . ." State v. R.B., 183 N.J. 308,

321-22 (2005) (quoting State v. Hock, 54 N.J. 526, 538 (1969)).

      That said, we are mindful that "[a]ppropriate and proper charges to a jury

are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981)

(citing Gabriel v. Auf Der Heide-Aragona, Inc., 14 N.J. Super. 558, 563-64

(App. Div. 1951)). The trial court has an "independent duty . . . to ensure that

the jurors receive accurate instructions on the law as it pertains to the facts and

issues of each case, irrespective of the particular language suggested by either

party." State v. Reddish, 181 N.J. 553, 613 (2004) (citing State v. Thompson,

59 N.J. 396, 411 (1971)).

      When evaluating whether claimed defects in the jury instructions rise to

the level of reversible error, the alleged error must be "viewed in the totality of

the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289

(2006). If, upon reviewing the charge as a whole, the reviewing court finds that

prejudicial error did not occur, then the jury's verdict must stand. State v.

Coruzzi, 189 N.J. Super. 273, 312 (App. Div. 1983).

      Neither of the claimed defects in the jury charge identified by Eli for the

first time on appeal amount to reversible error.




                                                                           A-0141-18T1
                                       15
                                         1.

      Under N.J.S.A. 2C:29-5(a), the crime of escape requires the State to prove

two elements: (1) the defendant knowingly removed himself from official

detention, and (2) did so without lawful authority. See Model Jury Charges

(Criminal), "Escape (N.J.S.A. 2C:29-5a)" (revised June 5, 2006). Among other

things, the statute defines "official detention" as "arrest," but does not provide a

definition of "arrest." N.J.S.A. 2C:29-5(a).

      During deliberations, the jury submitted a question to the judge: "What is

official detention?"   After consulting with counsel, the judge provided the

following explanation: "Official detention means arrest. Arrest means, seize

someone by legal authority for the purpose of taking into custody." Defense

counsel did not object to this clarified instruction.

      Eli now argues that the trial judge erred in failing to provide the jury with

a sufficient definition of "arrest." He cites the jury instruction provided by the

trial court in State v. Brown, 239 N.J. Super. 635, 640 (App. Div. 1990), as an

example of a more fact-sensitive and appropriate definition of "arrest." That

jury charge in Brown went well beyond the Model Jury Charge by stating that

"an individual fleeing from an officer would not be guilty of an escape unless




                                                                            A-0141-18T1
                                        16
the individual had first had his liberty of movement restrained by that officer."

Ibid.

        Eli argues that, rather than reading the model jury charge as written, the

trial judge should have instead tailored the jury instruction to the facts of his

case and told the jury "that for an escape to occur, the arrest must be over, even

for a moment, so that, logically one may 'escape' from it." (emphasis added).

        Although this explanation would have been more favorable to Eli, the

model jury charge for escape contains no such language. Nor do the notes to

the model charge call for such verbiage.

        "[I]nsofar as consistent with and modified to meet the facts adduced at

trial, model jury charges should be followed and read in their entirety to the

jury." State v. R.B., 183 N.J. 308, 325 (2005). "The process by which model

jury charges are adopted in this State is comprehensive and thorough; our model

jury charges are reviewed and refined by experienced jurists and lawyers." Ibid.

        Here, the trial court's jury instruction adhered closely to the language from

the Model Jury Charge for escape, which defines official detention as "arrest."

The only way in which the judge's instruction deviated from the model charge

was by omitting other factually inapplicable and potentially confusing

definitions of official detention, such as "detention in any facility for custody of


                                                                             A-0141-18T1
                                         17
persons under charge or conviction of a crime or offense" and "detention for

extradition or deportation." When the jury asked for further clarification on the

provided term "arrest," the judge gave an explanation which was accepted by all

parties.

      Because there was no objection to the instruction at trial, it may only be

the basis for reversal if it amounted to plain error. R. 2:10-2. Plain error in a

jury charge is one with the possibility to produce an unjust result "sufficient to

raise a reasonable doubt as to whether the error led the jury to a result it

otherwise might not have reached." State v. Jordan, 147 N.J. 409, 422 (1997)

(quoting State v. Macon, 57 N.J. 325, 336 (1971)). Here, there was nothing in

the instruction provided that could have led the jury to reach an unjust result.

      Folded into Eli's claim that the jury instruction for escape was insufficient

is an assertion that the charges for resisting arrest and escape were somehow

incompatible in this case. Eli essentially renews the argument he made to the

jurors during trial—that it would have been impossible for him to escape an

arrest he was also accused of resisting.

      However, the evidence admitted at trial reasonably supports the sequential

offenses of both escape and resisting arrest, as the judge reasonably explained




                                                                           A-0141-18T1
                                       18
when denying Eli's motion for judgment notwithstanding the verdict on the

escape count.

      First, Eli resisted arrest when he ran from Manna outside the elevator.

Manna then caught up to Eli in the main lobby. As the video confirms, Manna

tackled Eli, climbed on top of him, got him face-down on the floor, and

attempted to snap on handcuffs. At that point, Eli's liberty was restrained

sufficiently to be considered under arrest.

      Then, with the aid of his relatives who were interfering with and

distracting the officer, Eli used force to escape from Manna, before finally being

apprehended in the vestibule. The sequence of events reasonably could be found

to involve, first, an arrest that defendant resisted until the officer got him down

on the lobby floor, and, second, an escape from that restraint. The handcuffs

did not have to be fastened in order to consider the person as being under arrest.

See State v. Shaw, 237 N.J. 588, 612-613 (2019) (holding that placing a suspect

in handcuffs is only one factor which plausibly demonstrates the suspect is under

arrest).

      Eli had already been commanded by the officer to place his hands up

against the wall by the elevator. Having then run away and been tackled by the

officer, and forced to the floor in a prone position, he logically was by that point


                                                                            A-0141-18T1
                                        19
surely "under arrest." Had the officer posed accusatory questions to Eli while

he was in that prone position, his counsel would likely have argued such queries

would be a custodial interrogation and required Miranda6 warnings.

        Eli's subsequent conduct in breaking free from the officer in the lobby and

running out of the hotel reasonably can be regarded as an escape. By his actions,

Eli knowingly removed himself from official detention, and did so without

lawful authority. N.J.S.A. 2C:29-5(a).

        Because the evidence admitted at trial reasonably supports both the charge

of escape and the jury's guilty verdict, the trial court properly denied Eli's

motions on the escape count. The court's associated jury instructions were fair

and adequate.

                                          2.

         Eli next argues, for the first time on appeal, that the trial court erred by

giving the general self-defense jury charge, rather than the self-defense charge

tailored for resisting arrest. See Model Jury Charges (Criminal), "Justification-

Self Defense Resisting Arrest (N.J.S.A. 2C:3-4)" (approved Oct. 17, 1988). He

claims that he was prejudiced by use of the general self-defense instruction




6
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                             A-0141-18T1
                                         20
because it requires a higher threshold of force from the aggressor than the

resisting arrest charge.

      Both self-defense charges provide that the defendant is justified in using

force to resist "unlawful force," and both charges define unlawful force the same

way: "force used against a person without the person's consent in such a way

that the action would be a civil wrong or a criminal offense." See Model Jury

Charges (Criminal), "Justification-Self Defense In Self Protection (N.J.S.A.

2C:3-4)" (revised June 13, 2011).

      However, the charges diverge in how they frame that unlawful force

within the surrounding circumstances. The general instruction describes the

relevant circumstance as "[w]hen a person is in imminent danger of bodily

harm," making it applicable to any situation in which the defendant felt

reasonably threatened with injury. The resisting arrest charge, on the other hand,

provides the following context for jury deliberation: "An officer may use, to

effect an arrest, the amount of force necessary to accomplish the arrest.

Therefore, you must determine whether the officer used substantially more force

than was necessary to effect the arrest of the defendant."

      Eli maintains that the "imminent bodily harm" language of the general

charge imposes a higher threshold to trigger the application of self-defense than


                                                                          A-0141-18T1
                                       21
the "substantially more force than was necessary" language of the resisting arrest

charge. This interpretation of the two self-defense charges ignores a critical

component of the resisting arrest instruction.

      Unlike the general self-defense charge, in which the defendant need only

reasonably fear some imminent bodily harm, the resisting arrest charge

anticipates that the defendant will be lawfully subject to the "amount of force

necessary to accomplish the arrest." The defense is therefore only triggered if

the jury finds that the officer used "substantially more force than was necessary"

to complete that arrest. If anything, the threshold triggering the application of

the resisting arrest charge is higher than the general self-defense charge—the

very opposite of what Eli contends on appeal.

      Eli cites State v. Simms, 369 N.J. Super. 466, 473 (App. Div. 2004), in

support of the proposition that failure to provide the proper jury instruction on

self-defense constitutes plain error, requiring reversal. However, the Simms

court reversed the defendant's conviction because no self-defense charge was

issued, even though the defendant testified at trial that the arresting officer was

using excessive force. Ibid.

      Here, a self-defense instruction was provided at defense counsel's request,

despite the fact that the defendant did not even argue self-defense during


                                                                           A-0141-18T1
                                       22
opening or summation. In fact, the defense argued that Eli fled because he did

not know Manna was a police officer, not because Manna was using excessive

force. The prosecution likewise did not address self-defense issues in its own

summation, but instead focused on restating the facts of the case and rebutting

the argument that Eli did not know Manna was really an officer. Furthermore,

defense counsel did not object to the self-defense instruction that was read.

      Although we need not rely on it, the doctrine of invited error applies here,

because defense counsel requested the self-defense instruction and did not

object to the proffered charge. The invited error doctrine applies when the trial

court's alleged error was "induced, encouraged, acquiesced in or consented to

by defense counsel." State v. Corsaro, 107 N.J. 339, 345 (1987) (quoting State

v. Harper, 128 N.J. Super. 270, 277 (App. Div. 1973)). If the invited error "does

not deflect the jury from a fair consideration of the competent evidence of record

and from reaching a verdict of guilty which is supported overwhelmingly by

properly admitted evidence," the conviction must not be overturned. State v.

Simon, 79 N.J. 191, 207 (1979).

      Here, the substitution of the general self-defense charge for the resisting

arrest self-defense charge had no evident prejudicial impact on the jury's ability

to consider the evidence. Because defense counsel did not even argue self-


                                                                          A-0141-18T1
                                       23
defense in summation, the error did not manifestly affect his trial strategy or

undermine his theory of the case. The court's issuance of the general self -

defense instruction does not rise to the level of plain error under Rule 2:10-2.

                                       C.

      Eli's final arguments concern his sentence. As we have noted, the trial

court imposed an aggregate six-year custodial sentence. The sentence consisted

of a five-year term with a two-and-a-half-year parole ineligibility period on the

escape count, which the court merged with two of the resisting arrest counts

(four and six). Added to that was a consecutive one-year custodial term on the

remaining resisting arrest count, which the court described as "the incident at

the elevator."

      Eli contends the court's sentencing analysis is flawed and inadequate in

two respects: (1) it did not adequately explain why the court declined to merge

one of the resisting arrest counts, and (2) did not mention or apply the analysis

required under State v. Yarbough, 100 N.J. 627, 643-44 (1985), to justify the

imposition of the consecutive sentences. We agree and remand for resentencing

to rectify these problems.

      The question of whether two offenses should be merged at sentencing is a

flexible one. State v. Cole, 120 N.J. 321, 325-26 (1990). Among other things,


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the sentencing court should consider "the time and place of each purported

violation; whether the proof submitted as to one count of the indictment would

be a necessary ingredient to a conviction under another count; whether one act

was an integral part of a larger scheme or episode; the intent of the accused; and

the consequences of the criminal standards transgressed." Cole, 120 N.J. at 327.

      Here, the trial court's brief discussion of merger in the sentencing

transcript does not illuminate fully its reasoning for declining to merge all of the

resisting arrest counts, other than the observation that defendant's conduct by

the elevators was distinct from his later conduct in the lobby. Although there is

a reasonable basis to segregate the events in that fashion, the court did not

discuss the other merger considerations noted in Cole.

      For example, defendant stresses in his brief that the entire sequence of

events consumed less than two minutes. Although that factor of time is not

dispositive of merger (such as where, say, a murderer shoots two victims in a

rapid succession), it is at least a factor worthy of discussion in the context of

this case. The other Cole merger factors should also be noted and weighed.

      Likewise, the trial court did not discuss or apply the analysis required

under Yarbough to justify the consecutive sentences imposed, i.e., five years for

escape stacked upon one year for resisting arrest. Yarbough requires sentencing


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courts pondering the imposition of consecutive terms to consider such things as:

(1) whether the crimes and their objectives were independent of one another; (2)

whether the crimes involved separate acts or threats of violence; (3) whether the

crimes were committed at different times or places; (4) whether the crimes

involved multiple victims; and (5) whether the convictions are numerous.

Yarbough, 100 N.J. at 643-44.

      We have discussed, supra, the first three of these factors to some partial

extent and agreed with the State that evidence reasonably supports defendant's

guilt of both resisting arrest and escape. However, the question of whether Eli's

"objectives" were independent of one another was not addressed by the trial

court. Nor did the trial court expressly consider the identities of the victims,

and the numerosity of counts. A full Yarbough analysis was not performed.

      Because of these omissions, we are constrained to remand this matter for

resentencing, to be conducted in accordance with Cole, Yarbough, and other

pertinent case law on merger and consecutive sentences. 7

      Affirmed as to the convictions; remanded for resentencing. We do not

retain jurisdiction.


7
  We understand that defendant is apparently scheduled to be paroled soon in
July 2020, but that does not moot the sentencing issues. We expedited the
scheduling of this appeal at defendants' request.
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