                                     RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-4916-15T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

R.H.,1

     Defendant-Appellant.
_______________________

                   Argued February 13, 2019 – Decided March 29, 2019

                   Before Judges Koblitz, Currier and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Union County, Indictment Nos. 12-06-0516
                   and 15-10-0645.

                   Cody T. Mason, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Cody T. Mason, of counsel
                   and on the brief).

                   Meredith L. Balo, Special Deputy Attorney General/
                   Acting Assistant Prosecutor, argued the cause for

1
   We use initials to preserve defendant's anonymity because he was a
confidential informant.
             respondent (Michael A. Monahan, Acting Union
             County Prosecutor, attorney; Meredith L. Balo, of
             counsel and on the brief).

PER CURIAM

      Defendant R.H. appeals from February 24, 2016 convictions, after two

trials before the same jury. He was first convicted of Indictment No. 15-10-

0645: first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The same jury then

convicted defendant of Indictment No. 12-06-0516: two counts of certain

persons not to have weapons for the same gun on the same date, N.J.S.A. 2C:39-

7.2 The trial court sentenced defendant to an aggregate term of forty years in

prison, including a thirty-year prison sentence for robbery, subject to an eighty-

five percent parole ineligibility period pursuant to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2, and a consecutive ten-year prison sentence with

five years parole ineligibility.

      On appeal, defendant argues the court erred by barring evidence of his

status as a confidential informant until midtrial, admitting portions of a redacted


2
  The parties agree, based on the prior convictions of defendant alleged in each
count, that count one is a second-degree crime, N.J.S.A. 2C:39-7(b) and count
two a fourth-degree crime, N.J.S.A. 2C:39-7(a).
                                                                          A-4916-15T1
                                        2
interview transcript prejudicial to him, failing to instruct the jury on the lesser -

included charge of second-degree robbery and improperly instructing the jury

during the second, certain persons, trial.      Defendant also alleges the State

committed prosecutorial misconduct multiple times throughout the course of the

robbery trial and that his sentence was improper.      We affirm the convictions,

but remand for resentencing.

       On January 4, 2012, around 8 p.m., at the conclusion of a driving lesson,

the victim and her instructor, Henry Ansah, stopped at a bank in Elizabeth so

that the victim could use the ATM to withdraw money to pay for the lesson.

While the victim was in the ATM vestibule, defendant entered behind her and

demanded money. When the victim refused, defendant showed her a gun. The

victim gave defendant $100 she had just withdrawn from the ATM.                    At

defendant's direction, she withdrew an additional $200. The victim testified that

she believed the gun defendant showed her was genuine, and he was going to

kill her. After the victim told Ansah what happened, he brought her back to the

bank to see if defendant was still there and to retrieve her debit card, left at the

ATM.

       When Elizabeth Police Detective Athanasios Mikros arrived at the scene,

he identified defendant based on the bank's still photos and surveillance video.


                                                                            A-4916-15T1
                                         3
Detective Mikros and Detective James DiOrio interviewed defendant. DiOrio

read defendant his Miranda3 warnings, and informed defendant that he was

under arrest based on an Essex County Sheriff's warrant for a weapons offense.

Before Mikros and DiOrio began to question defendant about the January 4

ATM robbery, they questioned him about another robbery where a gun was used.

This part of the interview, in addition to references to defendant's past crimes

and his status as a confidential informant, was redacted from the transcript and

video of the interrogation presented to the jury.

       Defendant admitted that he was the individual in the photographs and

surveillance video. He explained that he went to the bank with a man named

Rock to sell drugs to the victim and use the money to buy more drugs. Defendant

claimed he entered the ATM vestibule to make sure the victim was getting the

correct amount of money. He told the victim the drugs would cost $250. The

victim gave him the money. He then ordered the victim to "take another [$200]

out." Defendant explained that he robbed the victim because he is a drug addict.

After the detectives continued to question him about the gun that he used to

commit the robbery, defendant asked, "what can I do to get around this shit?"



3
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                                                        A-4916-15T1
                                        4
Defendant said he would not give the detectives the gun unless he got

"something good" in return.

      After the interview, the detectives accompanied defendant to his mother's

house in Elizabeth.   Inside, defendant pointed to a bedroom chair piled with

clothes. A BB gun was found under the clothes. Mikros also found a scarf and

hat that defendant wore during the robbery.

      At trial, defendant provided another explanation. He testified that on the

evening of January 4, 2012, he was waiting with his acquaintance, Rock, to meet

a woman at the bank.     Defendant was there to sell the woman fraudulent

identification. She had purchased a New Jersey driver's license and a social

security card from them for $250, and he had traveled with Rock to the bank to

complete the transaction. Defendant went into the ATM vestibule to speak to

the victim. After the victim gave him $100, he informed her that the total was

$250, so she withdrew more money.

      Defendant admitted to having a gun in his hand

            because [there] . . . was an individual outside when I
            first pulled up, all black on, walking back and forth,
            walking towards the door and then walk[ing] back off.
            So I pulled the gun out because I didn't know whether
            or not he's trying to, you know, play me out or he was
            with her.



                                                                       A-4916-15T1
                                       5
      Defendant told the victim to wait while he went to get the social security

card from Rock, and $50 change from the sale of the fraudulent identification.

When he returned to Rock's car, he saw the victim, the individual dressed in

black, and another person enter a car and drive off. He gave Rock $250 and kept

the additional $50 for himself.

      Defendant said the gun was a toy, which he wanted to appear genuine to

scare the individual outside the bank. Defendant explained that the gun he

discussed during the police interview was not the gun used during the robbery.

      Defendant testified he was being sarcastic when he admitted to the police

he had robbed the victim because he was a drug addict. He claimed: "I realized

they [were] trying to basically trick me into saying what they . . . wanted me to

say." After a midtrial ruling admitting evidence of defendant's status as a

confidential informant, defendant testified that he had been a confidential

informant for Mikros, DiOrio and another detective.

      The victim testified in rebuttal that she never sought to obtain fraudulent

identification, explaining, "I have my green card and my social so I don't need

to go to somebody for a fake license." She explained that when defendant

approached her, he said, "give me money," and when she responded "no," he

showed her a gun.


                                                                         A-4916-15T1
                                       6
Defendant raises the following issues on appeal:

     POINT I: [R.H.]'S CONVICTIONS MUST BE
     REVERSED BECAUSE THE COURT STOPPED HIM
     FROM PRESENTING A FULL DEFENSE WHEN IT
     BARRED INFORMATION ABOUT HIS STATUS AS
     AN INFORMANT UNTIL MIDTRIAL, REDACTED
     RELEVANT        PORTIONS     OF    THE
     INTERROGATION,     AND   BARRED OTHER
     RELATED EVIDENCE.

     POINT II: THE COURT COMMITTED PLAIN
     ERROR WHEN IT ADMITTED, WITHOUT
     LIMITING INSTRUCTIONS, FOOTAGE OF THE
     DETECTIVES DISCUSSING [R.H.]'S CHARACTER
     TO HARM OTHERS AND HIS PARTICIPATION IN
     OTHER ROBBERIES, THE COMPLAINANT'S
     DECENCY      AND     CHARACTER       FOR
     TRUTHFULNESS, AND THEIR OPINION THAT A
     JURY WOULD CONVICT [R.H.] BASED ON THE
     EVIDENCE. (NOT RAISED BELOW).

     A. REVERSAL IS REQUIRED BECAUSE THE
     DETECTIVES'  ASSERTIONS   OF   [R.H.]'S
     WILLINGNESS  TO   HARM   PEOPLE,   HIS
     INVOLVEMENT WITH OTHER ROBBERIES, AND
     THE COMPLAINANT'S CREDIBILITY WERE
     INADMISSIBLE AND PREJUDICIAL BAD-ACT
     AND CHARACTER EVIDENCE.

     B. REVERSAL IS REQUIRED BECAUSE THE
     STATE PRESENTED INADMISSIBLE EVIDENCE
     CONCERNING THE DETECTIVES' OPINIONS
     REGARDING    [R.H.]'S GUILT   AND THE
     STRENGTH OF THE CASE AT TRIAL.

     POINT III: THE PROSECUTOR ENGAGED IN
     REVERSIBLE MISCONDUCT WHEN HE SHIFTED

                                                   A-4916-15T1
                                7
THE BURDEN OF PROOF, MISSTATED THE
FACTS OF THE CASE, FRAMED A GUILTY
VERDICT AS THE ONLY JUST RESULT, AND
BOLSTERED     THE   STATE'S  WITNESS'
CREDIBILITY WHILE DISPARAGING [R.H.].
(NOT RAISED BELOW).

A. REVERSAL IS REQUIRED BECAUSE THE
COURT DID NOT ADEQUATELY ADDRESS THE
PROSECUTOR'S COMMENTS THAT THE JURY
COULD ONLY ACQUIT IF IT BELIEVED [R.H.]
AND DISBELIEVED THE COMPLAINANT, WHICH
RESTRICTED THE JURY'S DELIBERATIONS AND
SHIFTED THE BURDEN OF PROOF.

B. THE PROSECUTOR ENGAGED IN REVERSIBLE
MISCONDUCT UNADDRESSED BY THE COURT
WHEN HE INCORRECTLY STATED THAT [R.H.]
LEFT BELONGINGS IN HIS SON'S BEDROOM
SUCH THAT IT DID NOT MATTER IF THE BB GUN
WAS RECOVERED THERE.

C. THE PROSECUTOR COMMITTED PLAIN
ERROR WHEN HE FRAMED A GUILTY VERDICT
AS THE ONLY JUST RESULT, DISPARAGED
[R.H.]'S CREDIBILITY AND CHARACTER, AND
VOUCHED FOR THE CREDIBILITY OF THE
COMPLAINANT AND LEAD DETECTIVE.

POINT IV: THE COURT ERRED IN REFUSING TO
CHARGE THE LESSER-INCLUDED OFFENSE OF
SECOND-DEGREE     ROBBERY      AND    IN
FACTUALLY LIMITING THE LESSER-INCLUDED
THEFT CHARGE.

A. REVERSAL IS REQUIRED BECAUSE THE
COURT FAILED TO CHARGE THE JURY ON
SECOND-DEGREE ROBBERY.

                                            A-4916-15T1
                    8
B. REVERSAL IS REQUIRED BECAUSE THE
COURT'S LESSER-INCLUDED THEFT CHARGE
UNDULY      LIMITED     THE    JURY'S
CONSIDERATION OF THE OFFENSE.

POINT V:   THE COURT ERRED DURING THE
SEPARATE TRIAL ON THE CERTAIN-PERSON
OFFENSES IN NOT CHARGING THE JURY ON
ISSUES SUCH AS ITS ROLE IN JUDGING
CREDIBILITY AND [R.H.]'S ELECTION NOT TO
TESTIFY. (NOT RAISED BELOW).

POINT VI: THE CUMULATIVE EFFECT OF THE
TRIAL ERRORS DEPRIVED [R.H.] OF DUE
PROCESS AND A FAIR TRIAL AND WARRANTS
REVERSAL OF HIS CONVICTIONS. (NOT RAISED
BELOW).

POINT VII: A REMAND IS REQUIRED BECAUSE
THE COURT DID NOT ADEQUATELY EXPLAIN
THE SENTENCE IMPOSED, DID NOT PROPERLY
ANALYZE        WHETHER      CONSECUTIVE
SENTENCES WERE APPROPRIATE, FAILED TO
AWARD A DAY OF JAIL CREDIT, DID NOT
PROPERLY GRADE AND MERGE THE CERTAIN-
PERSON     OFFENSES,   AND   IMPROPERLY
IMPOSED $30 IN FINES.

A. A REMAND IS REQUIRED BECAUSE THE
COURT DID NOT ADEQUATELY EXPLAIN THE
SENTENCE IMPOSED, DID NOT PROPERLY
ANALYZE      WHETHER       CONSECUTIVE
SENTENCES   WERE     WARRANTED,   AND
WITHHELD A DAY OF JAIL CREDIT.

B. A REMAND IS REQUIRED BECAUSE THE
COURT ERRED IN GRADING THE CERTAIN-

                                           A-4916-15T1
                   9
             PERSON WEAPON OFFENSE AS A SECOND-
             DEGREE CRIME, AND IN NOT MERGING IT WITH
             THE CERTAIN-PERSON FIREARM OFFENSE.

             C. A REMAND IS REQUIRED BECAUSE THE
             COURT ERRED IN IMPOSING TWO $30 N.J.S.A.
             2C:43- 3.3 FINES.

                                         I.

      Prior to the start of trial, the court denied defendant's application to admit

evidence that he was a confidential informant. At defendant's request, the court

also barred testimony and redacted portions of the transcript of the police

interview and video discussing an additional gun used in a separate robbery.

      "[T]he decision to admit or exclude evidence is one firmly entrusted in the

court's discretion."   State v. Scott, 229 N.J. 469, 479 (2017) (alteration in

original) (quoting Estate of Hanges v. Metropolitan Property & Cas. Ins. Co.,

202 N.J. 369, 383-84 (2010)). We review a court's evidentiary rulings under an

abuse of discretion standard and do "not 'substitute [our] own judgement for that

of the court' unless there was a 'clear error in judgment' -- a ruling so 'wide off

the mark that a manifest denial of justice resulted.'" Ibid. (quoting State v. Perry,

225 N.J. 222, 233 (2016)).

      Our Supreme Court has recognized:

             The Federal and New Jersey Constitutions guarantee
             criminal defendants "a meaningful opportunity to

                                                                            A-4916-15T1
                                        10
            present a complete defense." "That opportunity would
            be an empty one if the State were permitted to exclude
            competent, reliable evidence bearing on . . . credibility
            . . . when such evidence is central to the defendant's
            claim of innocence."

            [State v. Garron, 177 N.J. 147, 167 (2003) (citations
            omitted) (quoting Crane v. Kentucky, 476 U.S. 683,
            690 (1986)).]

      Generally, other-crimes evidence is admissible only if it passes the

rigorous test outlined in State v. Cofield, 127 N.J. 328, 338 (1992). See also

State v. Weaver, 219 N.J. 131, 150 (2014). However, "[a] defendant generally

may introduce 'similar other-crimes' evidence defensively if in reason it tends,

alone or with other evidence, to negate his [or her] guilt." Ibid. (quoting State

v. Garfole, 76 N.J. 445, 453 (1978)). Rule 401 governs the admissibility of

other-crimes evidence used defensively. "[P]rejudice to the defendant is no

longer a factor" and the standard is "simple relevance to guilt or innocence."

Ibid. (quoting Garfole, 76 N.J. at 452-53). "[A] defendant need only show that

the evidence offered has a rational tendency to engender a reasonable doubt

about an essential element of the State's case." Biunno, Weissbard & Zegas,

Current N.J. Rules of Evidence, cmt. 4 on N.J.R.E. 401 (2018).




                                                                        A-4916-15T1
                                      11
                            A. Confidential Informant.

      Defendant sought to introduce evidence that he had previously worked as

a confidential informant for the police. The court initially barred this testimony

as not relevant, and prejudicial to defendant, even though defendant sought its

admission.    It also stated that evidence of defendant's role as a confidential

informant would:

             open up . . . a Pandora's box . . . [regarding allegations]
             that at times the police in appreciation or payment [for
             defendant's cooperation as a confidential informant]
             would permit the defendant to keep drugs and/or
             money, things like that. . . . Now the Elizabeth Police
             are going to be on trial. . . . I'm not saying it didn't
             happen. . . . My concern is . . . confusion for the jury,
             taking their focus away from this case . . . The focus
             should not be on . . . . the details of the relationship
             between [defendant] and the Elizabeth Police.

The court explained that it would reconsider its decision after Detective Mikros

testified, if defendant chose to testify.

      During cross-examination of defendant at trial, the State asked defendant:

"Why would you [bring detectives to your son's gun] if that's not the gun you

used in the . . . alleged robbery?" Based on this question, defense counsel

renewed her motion to permit defendant to testify about his status as a

confidential informant. The court changed its prior ruling, explaining, "the

[c]ourt now finds. . . defendant's prior relationship with the police as a

                                                                           A-4916-15T1
                                            12
[confidential informant] relevant . . .[;] the [c]ourt does not find it relevant that

the police would allegedly permit the defendant to keep drugs in exchange for

the defendant's information."

      Based on the changed ruling, defense counsel asked defendant additional

questions before the State resumed its cross-examination. Defendant said he

had been a confidential informant for three detectives for about two years,

during which he had been compensated by the police. When he was picked up

by the detectives on January 11, 2012, he believed he was going to discuss an

event that occurred at another housing project. He was not aware he was under

arrest or that the statement he was giving would be used against him. He made

statements during the police interview contrary to what he eventually testified

to at trial "because I was a confidential informant and this is what I normally do

when I go into the station."

      On summation, defense counsel argued that, due to defendant's role as a

confidential informant, he "bargained for leniency" with the detectives. Defense

counsel argued: "That's what [R.H.] does. He bargains with them. I give you

this, you give me that. I say this for you, you give me this. That's what he does."

Defense counsel explained:

             That's why he didn't tell them the story that night,
             because he's so used to being in that room. How many

                                                                            A-4916-15T1
                                        13
            times has he been in that room where they're feeding
            him cues and he just repeats what they're saying. He
            didn't realize he was being recorded because most of
            the other times he's not. He didn't realize he was giving
            a statement.

       Because the court changed its ruling mid-trial, defendant was able to

present a complete defense concerning his role as a confidential informant, and

thus did not suffer prejudice from the earlier ruling.

                           B. Other-crimes evidence.

       While the court permitted defendant to present confidential informant

evidence, he was unable to present evidence that when he previously

incriminated himself in front of the detectives, they "protected him from

prosecution." The court additionally barred testimony discussing an additional

gun.

       The court did not abuse its discretion by ruling inadmissible evidence

defendant had previously incriminated himself in front of the detectives, who

then protected him from prosecution, because it would "'divert the minds of the

jurors from a reasonable and fair evaluation' of the issues in the case." See State

v. Brockington, 439 N.J. Super. 311, 333 (App. Div. 2015) (quoting State v.

Long, 173 N.J. 138, 164 (2002)).




                                                                          A-4916-15T1
                                       14
                           II. Detectives' Statements.

      Defendant argues for the first time on appeal that the court committed

plain error by admitting, through the video and transcript of the police interview,

detectives' statements discussing defendant's "alleged willingness to harm

people, his possible involvement in other robberies, the victim's good character

for truthfulness, and their opinion that a jury would convict [defendant] of

robbery." Arguments not raised in the trial court are reviewed under the plain

error standard, and we will not reverse unless there was error that is "clearly

capable of producing an unjust result." R. 2:10-2; see also State v. Pressley, 232

N.J. 587, 593 (2018).

      When applying the plain error standard to evidence that should have been

excluded, "the error will be disregarded unless a reasonable doubt has been

raised whether the jury came to a result that it otherwise might not have

reached." State v. R.K., 220 N.J. 444, 456 (2015). Our Supreme Court has

"insisted that, in opposing the admission of evidence a litigant must 'make

known his position to the end that the court may consciously rule upon it.'" State

v. Robinson, 200 N.J. 1, 19 (2009) (quoting State v. Abbott, 36 N.J. 63, 76

(1961)).    The detectives' recorded statements do not meet the plain error

standard.


                                                                          A-4916-15T1
                                       15
                         A. Defendant's Prior Bad Acts.

      During the police interview, the detectives questioned defendant on how

he knew that the door to the ATM would be unlocked. DiOrio asked defendant,

"How did you know the door was broken at that bank? Were you there a few

days earlier robbing someone else?" Mikros told defendant he "want[ed] to

know why did you rob her . . . [a]nd where's the gun?" He then stated, speaking

of another attempted robbery: "You had the perfect opportunity. You know the

daughter is in fucking line and you want to go rob her. That's what you did.

You pointed a gun. She didn't give you the money."

      Following that statement, DiOrio began to discuss the robbery of the

victim, stating: "Why would a lady who don't know you from Adam, take a

hundred dollars out, which she intended to, and then start another transaction

and take [another] $200 dollars . . . out?" The redacted version of the transcript,

presented at trial to the jury, does not suggest that two separate robberies were

being discussed during the interview.

      For the first time on appeal, defendant argues that these portions of the

transcript were improperly admitted as evidence of defendant's prior bad acts.

The primary concern is that "the jury may convict the defendant because he is 'a

"bad" person in general.'" Cofield, 127 N.J. at 336 (quoting State v. Gibbons,


                                                                          A-4916-15T1
                                        16
105 N.J. 67, 77 (1987)); see also State v. Garrison, 228 N.J. 182, 193-94 (2017)

(explaining that "[o]ne of the well-recognized dangers inherent in the admission

of so-called 'other-crimes evidence' is that a jury may convict a defendant not

for the offense charged, but for the extrinsic offense") (quoting State v. Skinner,

218 N.J. 496, 514 (2014)). These statements do not demonstrate prior bad acts

of defendant and were not prejudicial.

                         B. Defendant's Bad Character.

      During the police interview, the detectives questioned defendant about

whether the gun used in the robbery of the victim was real or fake. DiOrio told

defendant that he did not think the gun was real, because if it was , defendant

would have pulled it out of his pocket and put it to the victim's head. For the

first time on appeal, defendant argues that this statement constituted bad-

character evidence, and suggested that defendant had a violent disposition.

Again, in itself it is merely a comment by the detective and not proof of bad

character.

                        C. The Victim's Good Character.

      Defendant additionally argues that the State improperly bolstered the

victim's credibility and character when, during the police interview, the

detectives stated that she was "not a drug user," was "an innocent lady," and was


                                                                          A-4916-15T1
                                       17
"[not] making [the alleged robbery] up." In the context of the interrogation this

was not harmful.

                             D. Detectives' opinion.

      During the police interview, the detectives told defendant of the strength

of the State's case. For example, Mikros stated, "Even if we don't have the gun,

you have enough to go down. You're not gonna win this. You're not. We're not

lying to you." Defendant argues that these statements were "akin to opinion

testimony regarding the ultimate issue of guilt. . . ." Lay opinion testimony "can

only be admitted if it falls within the narrow bounds of testimony that is based

on the perception of the witness and that will assist the jury in performing its

function." State v. McLean, 205 N.J. 438, 456 (2011); N.J.R.E. 701.

      Defendant argues, for the first time on appeal, that the detectives'

interview statements were improper opinion testimony, evidence of defendant's

bad character and the victim's good character, as well as evidence of defendant's

prior bad acts. The statements were made in the videotaped interview to coax

defendant into confessing. Their admission as part of that taped interview was

not "clearly capable of producing an unjust result." See R. 2:10-2.




                                                                         A-4916-15T1
                                       18
                          III. Prosecutorial Misconduct.

      Defendant next argues that the State committed misconduct by shifting

the burden of proof, misstating facts of the case, and, for the first time on appeal,

by framing a guilty verdict as the only just result and bolstering the credibility

of its witnesses. When a defendant alleges that the prosecutor engaged in

misconduct, the court must "assess whether the defendant was deprived of the

right to a fair trial." Pressley, 232 N.J. at 593; see also State v. Wakefield, 190

N.J. 397, 437 (2007). "Thus, '[t]o justify reversal, the prosecutor's conduct must

have been "clearly and unmistakably improper," and must have substantially

prejudiced defendant's fundamental right to have a jury fairly evaluate the merits

of his defense.'" Wakefield, 190 N.J. at 438 (alteration in original) (quoting

State v. Papasavvas, 163 N.J. 565, 625 (2000)).

      The prosecutor is afforded wide latitude during summations, as long as he

or she "stays within the evidence and legitimate inferences therefrom. . . ." State

v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Mayberry, 52 N.J. 413, 437

(1968)). During summation, prosecutors are also permitted to "respond to an

issue or argument raised by defense counsel." State v. Johnson, 287 N.J. Super.

247, 266 (App. Div. 1996). "In reviewing closing arguments, we look, not to




                                                                            A-4916-15T1
                                        19
isolated remarks, but to the summation as a whole." State v. Atwater, 400 N.J.

Super. 319, 335 (App. Div. 2008).

                  A. Shifting the burden of proof to defendant.

      Defendant argues that the prosecutor committed reversible misconduct by

improperly shifting the burden of proof by informing the jury that they could

only acquit defendant if they did not believe the victim. Defendant further

argues that the court's curative instruction was inadequate.

      During summation, the prosecutor stated:

            If you are to believe the defendant's story, there are very
            important assumptions and very important decisions
            that you have to make . . . . You would have to believe
            the victim is lying about the robbery.

      After defense counsel objected, the court issued a curative instruction to

the jury:

            [T]here was also a comment [the prosecutor] made[,]
            something along the lines of to find the defendant not
            guilty you'd have to accept his version of the events. In
            reality -- and the jury charge is going to tell you that
            you can believe or disbelieve all or parts of the
            testimony of any of the witnesses. That's completely
            up to you.

      The court later instructed the jury on its ability to make credibility

determinations:



                                                                          A-4916-15T1
                                       20
            As the judges of the facts you are to determine the
            credibility of the witnesses . . . . Through this analysis
            as judges of the facts you weigh the testimony of each
            witness and then determine the weight to give to it.
            Through that process you may accept all of it, a portion
            of it, or none of it.

Finally, the court instructed the jury:

            [T]he burden of proof is on the State. The defendant is,
            therefore, not required to prove that he acted pursuant
            to a claim of right, rather, the burden is on the State to
            prove the defendant did not act pursuant to a claim of
            right. Thus, if the State has proven all the elements of
            robbery or theft beyond a reasonable doubt . . . then you
            must find the defendant guilty of robbery or theft.

      A prosecutor may never suggest a shifting of the burden of proof to

defendant. State v. Loftin, 146 N.J. 295, 389 (1996). Here, the prosecutor

responded to defense counsel's attack in summation on the victim's credibility

and her explanation of the robbery as "bizarre." At defendant's request, the trial

judge promptly issued an effective curative instruction to the jury, neutralizing

any possible prejudice caused by the remarks.          We find no unaddressed,

prejudicial misconduct.

                        B. Other Prosecutor Misconduct.

      Defendant next argues that the prosecutor committed reversible

misconduct by making improper inferences from the evidence, framing a guilty

verdict as the only just result, and bolstering the credibility of the victim while

                                                                          A-4916-15T1
                                          21
attacking the character of defendant. These issues are without sufficient merit

to warrant discussion. R. 2:11-3(e)(2).

                                IV. Jury Charges.

      Proper jury charges are essential for a defendant to receive a fair trial.

State v. Green, 86 N.J. 281, 287 (1981). "The trial judge has a mandatory duty

to charge the jury on the fundamental principles of law which control the case

. . . ." State v. Holmes, 208 N.J. Super. 480, 490 (App. Div. 1986) (quoting

State v. Fair, 45 N.J. 77, 90 (1965)). N.J.S.A. 2C:1-8(e) states: "The court shall

not charge the jury with respect to an included offense unless there is a rational

basis for a verdict convicting the defendant of the included offense."

      If a rational basis exists for charging the jury with the lesser-included

offense, "a court's failure to give the requested instruction is reversible error."

State v. Carrero, 229 N.J. 118, 128 (2017). When determining if "the rational-

basis test has been satisfied, the court must view the evidence in the light most

favorable to the defendant." Ibid.

      Defendant was charged with first-degree robbery.

            Robbery is a crime of the second degree, except that it
            is a crime of the first degree if in the course of
            committing the theft the actor attempts to kill anyone,
            or purposely inflicts or attempts to inflict serious bodily
            injury, or is armed with, or uses or threatens the
            immediate use of a deadly weapon.

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                                       22
            [N.J.S.A. 2C:15-1(b) (emphasis added).]

      N.J.S.A. 2C:11-1(c) provides that if the victim reasonably believed the

instrument used "to be capable of producing death or serious bodily injury," th e

instrument is a deadly weapon for the purposes of the statute. Thus, "any device,

instrument or the like will make robbery a crime of the first degree if the victim

reasonably believes it to be a deadly weapon." Cannel, N.J. Criminal Code

Annotated, cmt. 6 on N.J.S.A. 2C:15-1 (2018).

      The court rejected defendant's request for a lesser-included offense

charge, concluding there was no rational basis in the record for a charge of

second-degree robbery. "There is nothing that I could find that would indicate

a rational basis for the jury to conclude it was a second[-]degree robbery. [The

victim] says, you know what? He had a gun. He threatened me with it . . . by .

. . [making] gestures. He said give me the money." The judge further explained

that defendant testified "[i]t was a business transaction . . . and the only reason

he ever had the gun or reached for the gun . . . [was] because he had a concern

of what was happening outside the ATM . . . ."

      In order for a rational basis for second-degree robbery to exist, the jury

would have to find that defendant was guilty of robbery, but that he was not

"armed with, or [did not] use[] or threaten[] the immediate use of a deadly

                                                                          A-4916-15T1
                                       23
weapon." N.J.S.A. 2C:15-1(b). The victim testified that when she refused to

give defendant money, he showed her a black gun. She thought the weapon

defendant had was a real gun, and gave him money "because I thought he was

going to shoot me, like [I was] going to die that night[,] I was so scared."

      Defendant testified that he had a toy gun in his hand when interacting with

the victim, and that he "pulled the gun out" because he was wary of an individual

who was outside the ATM. Defendant also testified that he only put the gun

away after the victim gave him the first $100 because he no longer saw the

individual outside the bank.

      Even if defendant was armed with a toy gun, as he claims, no rational

basis existed to charge the jury on second-degree robbery.            The victim

indisputably saw a gun, toy or not, and thus reasonably believed it was a deadly

weapon.     The court properly refused to charge second-degree robbery.

Defendant's further claim that the court erred by not charging theft is without

sufficient merit to warrant discussion. R. 2:11-3(e)(2).

                        V. Certain Persons Jury Charge.

      After the jury returned a verdict convicting defendant of robbery,

possession of a firearm for an unlawful purpose, and unlawful possession of a

weapon, a separate trial before the same jury for the certain persons offenses


                                                                          A-4916-15T1
                                       24
took place. Defendant argues for the first time on appeal, after raising no

objection to the jury charge at the certain persons trial, that the court erred in

not re-instructing the jury on: (1) the nature of the indictment; (2) the function

of the court; (3) the duty to avoid speculation and conjecture; (4) the evidence

allowed to be considered; (5) the process for deliberating and returning a verdict;

(6) the jury's fact-finding function and role in judging the credibility of

witnesses; and (7) in light of defendant's decision not to testify, that he had the

right to remain silent and was presumed innocent.

      Consistent with our Supreme Court's clear instructions in State v.

Ragland, 105 N.J. 189, 194-96 (1986), the court properly instructed the jury:

            You must again disregard completely your prior verdict
            and consider anew the evidence previously admitted on
            the possession of a weapon by the defendant. The
            defendant again is entitled to the presumption of
            innocence. Each and every material fact that makes up
            the crime of certain persons not to have a firearm and
            the crime of certain persons not to have a weapon[,]
            including the element of possession[,] must be proven
            by the State beyond a reasonable doubt.

The court then instructed the jury on the law regarding possession of a firearm

and a weapon by a previously convicted person, and the elements the State must

prove in order to find defendant guilty of those crimes beyond a reasonable

doubt.


                                                                          A-4916-15T1
                                       25
      Absent objection from the defendant, no further charge was required.

                        VI. Cumulative Effect of Errors.

      Given the lack of significant error and overwhelming evidence of guilt,

this issue requires no further discussion. R. 2:11-3(e)(2).

                                 VII. Sentencing.

      We "review the court's 'sentencing determination under a deferential

standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015) (quoting State v.

Lawless, 214 N.J. 594, 606 (2013)). We must affirm the trial sentence if: (1)

the court followed the sentencing guidelines; (2) its findings of fact and

application of aggravating and mitigating factors were based on competent,

credible evidence in the record; and (3) the application of the law to the facts

does not "shock[] the judicial conscience." State v. Bolvito, 217 N.J. 221, 228

(2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

      "To provide an intelligible record for review, the court should identify the

aggravating and mitigating factors, describe the balance of those factors, and

explain how it determined defendant's sentence." State v. Kruse, 105 N.J. 354,

360 (1987). "Merely enumerating those factors does not provide any insight

into the sentencing decision, which follows not from a quantitative, but from a

qualitative, analysis." Id. at 363.


                                                                         A-4916-15T1
                                       26
                              A. Double-counting.

      At sentencing, the State moved for imposition of a discretionary extended

term of imprisonment based on defendant's prior convictions.

      N.J.S.A. 2C:44-3(a) provides:

            The court may, upon application of the prosecuting
            attorney, sentence a person who has been convicted of
            a crime of the first, second or third degree to an
            extended term of imprisonment if it finds . . . [t]he
            defendant has been convicted of a crime of the first,
            second or third degree and is a persistent offender.

The same statute defines a "persistent offender" as

            a person who at the time of the commission of the crime
            is [twenty-one] years of age or over, who has been
            previously convicted on at least two separate occasions
            of two crimes, committed at different times, when he
            was at least 18 years of age, if the latest in time of these
            crimes or the date of the defendant's last release from
            confinement, whichever is later, is within [ten] years of
            the date of the crime for which the defendant is being
            sentenced.

      In determining whether to impose a discretionary extended term, the court

must: (1) determine whether the minimum statutory predicates are met; (2)

decide whether to impose an extended term; (3) weigh aggravating and

mitigating factors to determine the base term of the extended sentence; and (4)

determine whether to impose a parole ineligibility period. State v. Pierce, 188

N.J. 155, 164 (2006).     The court must also consider the need for public

                                                                           A-4916-15T1
                                       27
protection. Ibid. Further, "other aspects of the defendant's record, which are

not among the minimal conditions for determining persistent offender status,

such as a juvenile record, parole or probation records, and overall response to

prior attempts at rehabilitation, will be relevant factors in adjusting the base

extended term." State v. Dunbar, 108 N.J. 80, 92 (1987).

      At sentencing, the court determined that an extended prison term should

be imposed based on defendant's multiple indictable and criminal convictions,

and his possession of a weapon. The court discussed defendant's extensive prior

criminal record. The court determined that defendant had "at least nine prior

indictable convictions . . . from 1991 to 2010."

      The court next explained that defendant "has been on parole, or probation,

or in prison, for over 20 years and has multiple violations of probation and

parole, has committed crimes while on probation and, frankly, although he may

be a different man today, seems to have no respect for the law." The court found

aggravating factor three applicable, N.J.S.A. 2C:44-1(a)(3), the risk that the

defendant will commit another offense, explaining "it's clear from the

defendant's many convictions and violations of probation and parole, that he's a

risk to re-offend, not to mention his struggle with addiction that makes him a

risk to offend, as well." The court additionally found applicable aggravating


                                                                        A-4916-15T1
                                      28
factor six, N.J.S.A. 2C:44-1(a)(6), the extent of the defendant's prior criminal

record and the seriousness of the offenses of which he has been convicted, citing

defendant's long criminal history.          Finally, the court found applicable

aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need for deterring defendant

and others from violating the law.

      Defendant argues that the court double-counted his extensive criminal

record by imposing an extended term and finding aggravating factor six

applicable. In State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005), the

sentencing judge erroneously relied upon a single prior conviction to justify both

the imposition of an extended term sentence, and the length of that extended

term. We found that doing so amounted to "double-counting" of the defendant's

prior conviction. Id. at 267-68. State v. McDuffie, 450 N.J. Super. 554, 576

(App. Div. 2017) recently addressed this situation, where a defendant argued

that a trial judge "impermissibly double-counted his criminal record, when

granting the State's motion for a discretionary extended term, and again, when

imposing aggravating factor six . . . ."

            "[F]acts that establish[] elements of a crime for which
            a defendant is being sentenced should not be considered
            as aggravating circumstances in determining that
            sentence." [Defendant's] criminal history was not a
            "fact" that was a necessary element of an offense for
            which he was being sentenced. Further, it cannot be

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                                       29
               disputed [defendant] had more than the requisite
               number of offenses to qualify for an extended term.
               Indeed, the trial judge was not then required to ignore
               the extent of his criminal history when considering
               applicable aggravating factors.

               [Id. at 576-77 (first and second alterations in original)
               (citation omitted) (quoting State v. Kromphold, 162
               N.J. 345, 353 (2000)).]

      Given defendant's numerous prior convictions, the court did not commit

error by imposing an extended term and using his prior convictions also as an

aggravating factor. Nor did the court err in finding aggravating factor nine, the

need for deterrence.

                                      B. Fines.

      Defendant argues that the court erred in imposing two $30 fines pursuant

to N.J.S.A. 2C:43-3.3, which provides that penalties be deposited into a "Law

Enforcement Officers Training and Equipment Fund." He argues that the statute

requires only one $30 penalty per disposition, and here there was only one

disposition.

      "In addition to any disposition made pursuant to the provisions of Title

2C . . . any person convicted of a crime shall be assessed a penalty of $30."

N.J.S.A. 2C:43-3.3(a) (emphasis added). A "disposition" is defined as "[a] final

settlement or determination."       Black's Law Dictionary 539 (9th ed. 2009).


                                                                           A-4916-15T1
                                         30
Defendant had two trials. He was sentenced for his conviction under Indictment

No. 15-10-0645 for robbery and unlawful possession of a weapon. Defendant

was thereafter sentenced, with a separate judgement of conviction, for the

charges under Indictment No. 12-06-0516, two counts of certain persons not to

have weapons. The court did not err in assessing two $30 penalties pursuant to

N.J.S.A. 2C:43-3.3.

                              C. Consecutive terms.

      Defendant argues persuasively that the court erred by failing to address

the Yarbough factors in sentencing defendant to consecutive sentences. See

State v. Yarbough, 100 N.J. 627, 643-44 (1985). N.J.S.A. 2C:44-5(a) provides

that when a defendant receives multiple sentences "for more than one offense .

. . such multiple sentences shall run concurrently or consecutively as the court

determines at the time of sentence . . . ." Our Supreme Court set forth five

factors that courts should consider in deciding whether to impose consecutive

sentences:

             (a) the crimes and their objectives were predominantly
             independent of each other; (b) the crimes involved
             separate acts of violence or threats of violence; (c) the
             crimes were committed at different times or separate
             places, rather than being committed so closely in time
             and place as to indicate a single period of aberrant
             behavior; (d) any of the crimes involved multiple


                                                                         A-4916-15T1
                                       31
            victims; and (e) the convictions for which the sentences
            are to be imposed are numerous.

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

      "The Court also specifically directed that 'the reasons for imposing either

a consecutive or concurrent sentence should be separately stated in the

sentencing decision.'"   State v. Miller, 205 N.J. 109, 129 (2011) (quoting

Yarbough, 100 N.J. at 643). Where a court does not explain its reasoning for

imposition of consecutive sentences, "a remand is ordinarily needed for the

judge to place reasons on the record." Ibid.

      Under the robbery indictment, on count one, first-degree robbery, the

court sentenced defendant to a prison term of thirty years under NERA. On the

certain persons indictment, count one, defendant was sentenced to a consecutive

term of ten years imprisonment with five years of parole ineligibility.

      In sentencing defendant to consecutive sentences, the court explained, "I

do find that a consecutive sentence, meaning the certain persons, is appropriate

due to [defendant's] lengthy, substantive criminal history and for the protection

of the public." A remand is necessary because the court failed to address any of

the Yarbough factors. We note that the robbery and certain person offenses were

not entirely independent of each other, and involved no more than one victim.



                                                                          A-4916-15T1
                                      32
      Both the State and defendant agree that we should remand to determine

whether defendant is entitled to an additional day of jail credit. Also, both the

State and defendant agree defendant's conviction of certain persons not to have

a weapon, N.J.S.A. 2C:39-7(a) (count two), a fourth-degree crime, should merge

with certain persons not to have a firearm, N.J.S.A. 2C:39-7(b) (count one), a

second-degree crime.

      We thus remand for a new sentencing hearing, to allow the parties to fully

address the sentencing issues. We affirm the convictions and do not retain

jurisdiction.




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                                      33
