                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
                          State of New Jersey v. Jamil McKinney (A-74/75-13)(073070)
                          State of New Jersey v. Al-Tariq Wardrick (A-76-13) (073078)
Argued January 20, 2015 -- Decided August 27, 2015
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
        In these consolidated appeals, the Court considers whether the jury instructions were erroneous and, if so,
whether that error requires a new trial.
          These consolidated appeals arise from an incident in which three armed men forced their way into the
apartment in which Christopher Jones resided with his nieces, Tiara Parker and Lakesha Bella, and his nieces’
friends, Shontae Lewis and Latanya Carter. Once inside, two of the intruders kicked in the door of the bedroom
Lewis and Parker shared. They pointed their guns at the girls, asked where the money was, and then directed the
girls into the living room. One intruder stayed with the girls, while the other two walked toward Christopher’s
room. Once inside, the men demanded his money and jewelry. When Christopher told them he had neither, one of
the assailants started tussling with him. The struggle ended when one of the attackers hit Christopher in the head
with his gun. Christopher’s brother, Melvin Jones, who also lived in the building, was awakened by the
commotion. He came out of his apartment to investigate, but was confronted by several people standing in the
hallway. One of the attackers pointed a gun at Melvin and ordered him back inside. Melvin returned to his
apartment, called the police, and gave the dispatcher a description of the armed men. Several officers responded to
the scene and pursued men who matched the description. After apprehending the suspects, the officers transported
the men back to the scene of the home invasion for identification. Melvin identified the detained suspects, Al-Tariq
Wardrick and Jamil McKinney (together defendants), as two of the three intruders.
          Defendants were charged in a seventeen-count indictment and tried jointly by a jury. At trial, all counsel
and the court agreed that the jury would not consider any lesser-included offenses of first-degree robbery.
However, during its instructions to the jury, the court stated the following: “If you find that the State has proven
beyond a reasonable doubt that [defendants] committed the crime of robbery as I have defined the crime to you, but
if you find that the State has not proven beyond a reasonable doubt that [defendants] were armed with or used or
purposely threatened the immediate use of a deadly weapon at the time of the commission of the robbery, then you
must find [defendants] guilty of robbery in the second degree.” Realizing its error, the court then stated, “I think I
indicated that – a portion of the charge that referred to robbery of the second degree. There is no charge of robbery
of the second degree. So that part is omitted.” Later, in the course of instructing the jury on first-degree robbery,
the court mentioned second-degree robbery again. The jury ultimately found both men guilty of multiple offenses,
including second-degree conspiracy to commit robbery (count one), first-degree robbery (count two), and second-
degree burglary (count fourteen).
          Defendants subsequently filed separate appeals that were neither consolidated nor calendared back-to-back.
One panel of the Appellate Division (the McKinney panel) held that the first-degree robbery instructions contained
errors that had the clear capacity to produce an unjust result and, therefore, reversed McKinney’s conviction for
first-degree robbery and remanded for a new trial on that count. The Court subsequently granted certification. 217
N.J. 291 (2014). A different Appellate Division panel (the Wardrick panel) held that the charge was erroneous, but
that the error was harmless, as there was sufficient evidence from which a jury could have found that, in the course
of committing a theft, defendant was armed with a deadly weapon. In December 2012, Wardrick petitioned the
panel to reconsider his appeal in light of the outcome of McKinney’s appeal. He argued that the same infirmity in
the robbery charge impacted his trial and required reversal. On reconsideration, the Appellate Division again
affirmed his conviction. The Court subsequently granted certification limited to whether: 1) the Appellate Division
erred in affirming defendant’s conviction in light of another panel’s reversal of his co-defendant’s conviction arising
out of the same trial and alleged error; and 2) whether the trial court erred in failing to set aside defendant’s
conviction for first-degree robbery. 217 N.J. 293 (2014).
HELD: The trial court’s references to second-degree robbery in the course of the jury instructions were erroneous.
Its subsequent efforts to cure the error were confusing and ineffective. Thus, the instruction constituted reversible
error. The judgment of the Appellate Division in State v. Wardrick is reversed as to his conviction for first-degree
robbery, and the matter is remanded to the trial court for proceedings consistent with this opinion. The judgment is
affirmed in all other respects. The judgment of the Appellate Division in State v. McKinney is affirmed.
1. Defendants did not object to the jury charge at trial. Therefore, the Court reviews the charge for plain error. To
warrant reversal, the error must be clearly capable of producing an unjust result. The Court must not look at
portions of the charge alleged to be erroneous in isolation, but should examine the charge as a whole to determine its
overall effect. In a case where, as here, the State argues that the error is harmless because the trial judge correctly
instructed the jury in other components of the charge, the test is whether the charge accurately sets forth the
controlling principles of law. Trial judges are encouraged to correct errors that occur during trial. A curative jury
instruction is one method to remedy trial error and is sometimes required to address testimony that should not have
been heard by the jury. (pp. 23-27)
2. Here, defendants were found guilty by the same jury, based on the same evidence, but received disparate results
on appeal. That can be explained, in part, by the failure to assign both defendants’ appeals to the same Appellate
Division panel. The results may also be explained by Wardrick’s failure to argue, until he learned of the disposition
of McKinney’s appeal, that the first-degree robbery charge was erroneous. It was in the context of resolving
Wardrick’s motion for reconsideration that the Wardrick panel declined to invoke the law of the case doctrine,
conducted a full review of the first-degree robbery charge, and concluded that any error was harmless. The
Wardrick panel correctly declined to apply the law of the case doctrine with respect to the asserted error. That
ruling is consistent with the Court’s recent opinion in State v. K.P.S., 221 N.J. 266 (2015), which held that due
process dictates that each defendant is entitled to a full and fair review of any order, judgment, or verdict without
regard to the disposition of an appeal filed by another defendant in the same proceeding who happened to receive a
decision before his co-defendants. (pp. 28-29)
3. Here, the parties and trial court agreed that the jury would not be instructed that it could consider second-degree
robbery as a lesser-included offense. Therefore, the court was obliged to fashion a charge that contained the
essential elements of the first-degree robbery offense with no mention of second-degree robbery. That is not what
occurred. Compounding the error, the court did not provide an adequate curative instruction and delivered
confusing directions regarding the circumstances that required a guilty or not guilty verdict. The court’s initial error
demanded a more thorough and pointed curative instruction. The court’s reference to second-degree robbery in the
charge, and its failure to adequately resolve that confusion, had the clear capacity to permit defendants to be found
guilty of first-degree robbery without a finding that they were armed. Therefore, a new trial is required for both
defendants on the first-degree robbery count. (pp. 29-30)
4. The Court has approved of jury instructions that simply state that the jury must find that the State has proven each
element of the offense beyond a reasonable doubt in order to find a defendant guilty. The better practice, however,
is for the court specifically to inform the jury that it must find the defendant not guilty if it fails to find any element
beyond a reasonable doubt. Here, the trial court’s reference to second-degree robbery was erroneous and the court’s
efforts to fix the error were confusing. Thus, the instruction constituted reversible error. (pp. 31-36)
        The judgment of the Appellate Division in State v. Wardrick is AFFIRMED in part and REVERSED in
part. The matter is REMANDED to the trial court for proceedings consistent with this opinion. The judgment of
the Appellate Division in State v. McKinney is AFFIRMED.
       CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUDGE CUFF’s opinion.




                                                            2
                                     SUPREME COURT OF NEW JERSEY
                                     A-74/75 September Term 2013
                                                073070
                                       A-76 September Term 2013
                                                073078


STATE OF NEW JERSEY,

    Plaintiff-Appellant
    and Cross-Respondent,

         v.

JAMIL MCKINNEY, a/k/a JAMEEL
MCKINNEY, HAKIM MCKINNEY,
MALIK HOWARD and JAMIL
WARDRICK,

    Defendant-Respondent
    and Cross-Appellant.


STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

AL-TARIQ WARDRICK,

    Defendant-Appellant.

         Argued January 20, 2015 – Decided August 27, 2015

         On certification to the Superior Court,
         Appellate Division.

         Lucille M. Rosano, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued
         the cause for appellant and cross-respondent
         State of New Jersey in State v. Jamil
         McKinney and respondent in State v. Al-Tariq
         Wardrick (Carolyn A. Murray, Acting Essex
         County Prosecutor, attorney).


                               1
         Michele A. Adubato, Designated Counsel,
         argued the cause for appellant Al-Tariq
         Wardrick (Joseph E. Krakora, Public
         Defender, attorney; Ms. Adubato and Alison
         S. Perrone, Designated Counsel, on the
         briefs).

         Stephen W. Kirsch, Assistant Deputy Public
         Defender, argued the cause for respondent
         and cross-appellant Jamil McKinney (Joseph
         E. Krakora, Public Defender, attorney).

         Sarah E. Ross, Deputy Attorney General,
         argued the cause for amicus curiae Attorney
         General of New Jersey (John J. Hoffman,
         Acting Attorney General, attorney).

    JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

    These consolidated appeals arise from an intrusion into an

apartment by three armed men.   Al-Tariq Wardrick and Jamil

McKinney (together defendants) were identified as two of the

three intruders and were charged in a seventeen-count

indictment.   Wardrick and McKinney were tried together by a jury

and convicted of several offenses, including first-degree

robbery and second-degree burglary.   Each defendant appealed his

conviction.   Normally, their appeals would have been assigned to

the same part of the Appellate Division and likely scheduled on

the same calendar.   That did not occur.

    One panel of the Appellate Division held that the first-

degree robbery charge contained errors that had the clear


                                 2
capacity to produce an unjust result and reversed McKinney’s

conviction.    The other panel of the Appellate Division held that

the charge was erroneous but that the error was harmless.     The

panel affirmed Wardrick’s conviction.

    Wardrick urges this Court to apply the law of the case

doctrine based on the earlier judgment of the Appellate

Division.     We recently addressed this very issue in State v.

K.P.S., 221 N.J. 266 (2015), holding that the doctrine has

little, if any, applicability in a criminal, appellate setting.

Indeed, we held that to apply the doctrine to a subsequent

appeal by a co-defendant who was tried before the same jury or

whose pretrial motion was adjudicated by the same judge in a

single proceeding would contravene the due process rights of the

subsequent defendant.

    As to the merits, we agree that the first-degree robbery

jury instruction was erroneous and that the error requires a new

trial on the first-degree robbery charge.    Although the trial

court concurred in the position advanced by all counsel that

second-degree robbery should not be submitted to the jury as a

lesser-included offense of first-degree robbery, the trial court

improperly injected second-degree robbery as an alternative

outcome twice and provided an inadequate curative instruction on

both occasions.    Having informed the jury that it should convict

defendants of second-degree robbery if it found that they were

                                   3
not armed and having informed the jury that it should disregard

the reference to second-degree robbery, the trial court was

obliged to instruct the jury that it must find defendants not

guilty of first-degree robbery if it found that they were not

armed at the time they committed a robbery.     The trial court did

not do so.   Therefore, affirm the judgment of the Appellate

Division in State v. McKinney.       We reverse the judgment of the

Appellate Division in State v. Wardrick as to his conviction for

first-degree robbery.   The judgment is affirmed in all other

respects.

                                 I.

                                 A.

     The following facts are derived from the trial record.        At

approximately 1:30 a.m. on April 9, 2007, three armed men

forcibly entered a second-floor Newark apartment, where

Christopher Jones1 resided with his two nieces, Tiara Parker and

Lakesha Bella, and his nieces’ friends, Shontae Lewis and

Latanya Carter.   Two of the men kicked in the door of the

bedroom shared by Lewis and Parker.     They pointed guns at the

girls, asked where the money was, and then directed the young

women into the living room.   One of the men stayed with the

girls, while the other, joined by a third intruder, walked


1 Because Christopher Jones shares the same surname as his
brother, Melvin Jones, we refer to both by their first names.
                                 4
toward Christopher’s bedroom.    At trial, neither Lewis nor

Parker could identify the men.   They recalled, however, that one

of the men wore a white t-shirt and had a silver automatic

handgun, while the other two had black handguns.   Lewis also

recalled that the men wore jeans and that one wore a black

shirt.

    Two of the intruders entered Christopher’s bedroom.    They

brandished weapons and demanded money and jewelry; Christopher

responded that he had neither.   One of the intruders grabbed

Christopher, and a “tussle” ensued.   The struggle ended when one

of the men struck Christopher in the head with a gun.   Both

intruders then left.

    Christopher’s brother, Melvin, who lived in an apartment on

the first floor of the building, was awoken by the commotion.

He got dressed and exited his apartment, intending to head up

the stairs to his brother’s apartment, but was confronted by

several people standing in the hallway.   One man pointed a gun

at Melvin and told him to go back inside.    He returned to his

apartment and contacted the police.   Melvin told the dispatcher

that the man who had pointed the gun at him was wearing a gray

sweatshirt, gray jeans, and a do-rag or dark stocking cap; he

described one of the other intruders, also armed, as a “short

stocky guy with dreads.”



                                  5
    Christopher was taken by ambulance to the hospital, where

he received eighteen staples in the side of his head.

Christopher reported that the men stole his wallet, watch, and

his mother’s car keys.   Those items, as well as Lewis’s purse,

were never recovered.

    Officer Lawrence Brown and his partner, Officer Orlando

Andujar, were the first to arrive at the scene.   As Officer

Brown approached the area, he saw a “dark-colored vehicle

speeding” away from the house.   He then noticed “two males run

across the street directly in front of [him] from the location,

one with a ski mask on and both with handguns in their hands.”

Officer Brown got out of the police vehicle and chased after the

suspects.   During the pursuit, Officer Brown saw the individuals

toss away what he believed to be guns and a ski mask.    The

suspects then jumped over a fence and into the next yard.

Officer Brown told the dispatcher the direction in which the

suspects were heading.   He remained in the yard and searched the

area with his flashlight, eventually finding two guns and a ski

mask.

    Several other officers continued the foot pursuit.    One of

the suspects was apprehended after becoming entangled in barbed-

wire fencing; the other was seen climbing through the window of

a nearby dwelling.   Two officers followed the suspect into the



                                 6
building.     They apprehended the individual, who was “crouched

down at the top of the stairwell.”

    The police officers transported the two men back to the

scene of the home invasion in separate patrol cars for a “show-

up” identification.     Christopher was unable to identify the

intruders because they were wearing masks.     Melvin identified

the detained suspects as the intruders; he told police they were

known as “Homey” and “Rico.”     Christopher later provided a photo

identification of Wardrick.

    An Essex County grand jury returned a seventeen-count

indictment.    Both defendants were charged with the following:

second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and

2C:15-1 (count one); first-degree robbery of Christopher Jones

and Shontae Lewis, N.J.S.A. 2C:15-1 (counts two and six);

second-degree aggravated assault of Christopher Jones, N.J.S.A.

2C:12-1(b) (count three); third-degree unlawful possession of a

weapon (handgun), N.J.S.A. 2C:39-5(b) (counts four and nine);

third-degree possession of a weapon (handgun) for an unlawful

purpose, N.J.S.A. 2C:39-4(a) (counts five, ten, and thirteen);

third-degree terroristic threats to Shontae Lewis and Tiara

Parker, N.J.S.A. 2C:12-3(a) (counts seven and eleven); fourth-

degree aggravated assault of Shontae Lewis and Tiara Parker,

N.J.S.A. 2C:12-1(b)(4) (counts eight and twelve); and second-

degree burglary, N.J.S.A. 2C:39-4 (count fourteen).    McKinney

                                   7
was also charged with fourth-degree resisting arrest, N.J.S.A.

2C:29-2(a) (count sixteen).    Wardrick also was charged with

fourth-degree criminal trespass, N.J.S.A. 2C:18-3 (count

fifteen), and fourth-degree resisting arrest, N.J.S.A. 2C:29-

2(a) (count seventeen).

       At trial, neither Lewis nor Parker could identify

defendants as the intruders.     However, they did describe the

clothing worn by their assailants.       Christopher disavowed his

prior statement to police.     He explained that he did not clearly

see the intruders because he was “tussling” with one of the men.

He also stated that he had been released from the hospital just

before the photo identification procedure.

       Melvin also recanted his earlier statement to police.     That

statement, which identified Wardrick and McKinney by their

street names, was admitted at trial following a Gross2 hearing.

However, Melvin confirmed that Wardrick and McKinney were the

men in the police car at the time of the show-up procedure.

       Forensic experts and several police officers, who responded

to the 9-1-1 call and participated in the pursuit, also

testified.    Their testimony established that the handgun that

had been possessed by McKinney and recovered by Officer Brown

bore Christopher’s DNA.    The ski mask recovered in the yard was




2   State v. Gross, 121 N.J. 1 (1990).
                                   8
tested for hair, skin, and saliva, resulting in a match to a DNA

sample taken from McKinney.

                                B.

    Wardrick and McKinney were tried by a jury together,

commencing in February 2009.   At trial, all counsel agreed that

the jury would not consider any lesser-included offenses for

first-degree robbery.

    The trial court provided the following instruction on

first-degree robbery within the context of charging the jury on

both conspiracy to commit first-degree robbery (count one) and

first-degree robbery of Christopher (count two):

              In order for you to find [defendants]
         guilty of robbery, the State is required to
         prove each of the following elements beyond a
         reasonable doubt: [t]hat [defendants] were in
         the course of committing a theft; that while
         in the course of committing that theft,
         [defendants]   knowingly    inflicted   bodily
         injury or the use of force upon another; or B,
         threatened another with or purposely put him
         in fear of immediate bodily injury.

         [(Emphasis added).]

The court then instructed the jury as follows:

              In this case, it is alleged that
         [defendants]  were   armed  with,   used  or
         threatened the immediate use of a deadly
         weapon while in the course of committing the
         robbery.

              . . . .

              In this case the State alleges that
         [defendants] were armed with a handgun. You

                                9
          must determine if this object qualifies as a
          deadly weapon, and if the State has proven,
          beyond a reasonable doubt, that defendant used
          in the course of committing this robbery.

               . . . .

               To summarize, if you find that the State
          has not proven beyond a reasonable doubt any
          one of the elements of the crime of robbery as
          I have defined that crime to you, then you
          must find [defendants] not guilty.

               If you find that the State has proven
          beyond a reasonable doubt that [defendants]
          committed the crime of robbery as I have
          defined the crime to you, but if you find that
          the State has not proven beyond a reasonable
          doubt that [defendants] were armed with or
          used or purposely threatened the immediate use
          of a deadly weapon at the time of the
          commission of the robbery, then you must find
          [defendants] guilty of robbery of the second
          degree.

               If you find that the State has proven
          beyond a reasonable doubt that the defendant
          committed the crime of robbery and was armed
          with a deadly weapon or used or threats of the
          immediate use of the deadly weapon at the time
          of the commission of the robbery, then you
          must find [defendants] guilty of robbery in
          the first degree.

          [(Emphasis added).]

    Thereafter, the court stated:    “I think I indicated that --

a portion of the charge that referred to robbery of the second

degree.   There is no charge of robbery of the second degree.    So

that part is omitted.”

    Later, in the course of instructing the jury on count six,

first-degree robbery, the trial court again referenced second-

                                10
degree robbery.   That reference occurred as the trial court

instructed the jury about the consequences of finding that the

State did not prove each required element of first-degree

robbery.

    The jury ultimately found both McKinney and Wardrick guilty

of second-degree conspiracy (count one), first-degree robbery of

Christopher Jones (count two), and second-degree burglary (count

fourteen).   The jury found McKinney guilty of resisting arrest

(count sixteen), and Wardrick guilty of criminal trespass (count

fifteen) and resisting arrest (count seventeen).   Both

defendants were acquitted of aggravated assault (count three).

The jury could not reach a verdict on the weapons charges or the

other remaining counts.

    A sentencing proceeding for Wardrick took place on May 11,

2009.   The court merged count one (conspiracy to commit first-

degree robbery) into count two (first-degree robbery of

Christopher), and imposed a fifteen-year term of imprisonment on

count two, subject to an eighty-five percent parole disqualifier

pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The court also imposed concurrent sentences of eight years of

imprisonment on count fourteen (second-degree burglary),

eighteen months on count fifteen (fourth-degree criminal

trespass), and eighteen months on count seventeen (fourth-degree

resisting arrest).

                                11
    McKinney was sentenced on May 29, 2009.     The court merged

count one into count two, and imposed an eighteen-year term of

imprisonment on count two, subject to NERA.    The court also

sentenced McKinney to a concurrent ten-year term of imprisonment

subject to NERA on count fourteen, and a concurrent eighteen-

month term of imprisonment on count sixteen.

    Defendants filed separate appeals that were neither

consolidated nor calendared back-to-back.

                               II.

                               A.

    On appeal, McKinney argued, among other things, that “the

jury instructions on armed robbery and armed burglary were

confusing and incorrect, particularly in a case where, as here,

the jury had difficulty determining the defendant’s guilt o[n]

the weapons offenses in the indictment.”

    The Appellate Division (the McKinney panel) concluded that

“there was reversible error in the first-degree robbery charge.”

The appellate court concluded that the trial court “should have,

but did not, instruct the jury that they should acquit defendant

of armed robbery if they found the elements of unarmed robbery

but had doubt about the armed element.”    The panel further noted

that “[t]he jury clearly did not agree on whether defendant was

armed, as it reached no verdict on the weapons counts, but

apparently believed that they should nonetheless convict him

                               12
based on the unarmed elements of robbery.”    On that basis, the

panel reversed defendant’s first-degree robbery conviction and

remanded for a new trial on that count.    The Appellate Division

however affirmed the second-degree burglary conviction, stating

that it was “satisfied that the re-instruction sufficiently

cured any confusion that the first instruction may have caused.”

The State filed a petition for certification.     This Court

granted certification on March 17, 2014.     217 N.J. 293 (2014).

                               B.

    On appeal, Wardrick argued that the trial court erred in

denying his motion to set aside the conviction for first-degree

robbery based on the inconsistency of the jury’s verdicts.     A

different panel of the Appellate Division (the Wardrick panel)

affirmed his conviction, stating that inconsistent verdicts have

long been accepted within our criminal justice system, (citing

State v. Banko, 182 N.J. 44, 53 (2004)), so long as there is

sufficient evidence in the record for the charges.     Because the

jury could not reach a verdict and defendant was therefore not

acquitted of the weapons offenses, the appellate panel concluded

that an analysis of the verdict was not warranted.    The panel

remarked, “‘[T]he fact that a jury [is unable to reach a

verdict] is evidence of nothing -- other than, of course, that

it has failed to decide anything.’”   (Alterations in original)

(quoting Yeager v. United States, 557 U.S. 110, 125, 129 S. Ct.

                               13
2360, 2370, 174 L. Ed. 2d 78, 90 (2009)).     The panel recounted

the evidence presented with regard to the weapons charges and

suggested several reasonable explanations for the

inconsistencies.

    The Wardrick panel was “satisfied [that] there was

sufficient evidence from which a jury could have found that in

the course of committing a theft, defendant was armed with a

deadly weapon.”    The panel noted that it is impermissible

speculation to analyze why the verdicts were inconsistent, and

that, in and of itself, an inconsistent verdict is insufficient

to require reversal.

    In December 2012, Wardrick petitioned the Wardrick panel to

reconsider his appeal in light of the outcome of co-defendant

McKinney’s appeal.     He argued that the same infirmity in the

robbery charge impacted his trial and required reversal.      The

Appellate Division granted his motion for reconsideration.

On reconsideration, the Wardrick panel again affirmed Wardrick’s

conviction.   It disagreed with the McKinney panel’s conclusion

that the jury believed it could convict McKinney of first-degree

robbery if he was unarmed.     The Wardrick panel also noted that

“the decision of one co-equal court is not binding upon another

co-equal court.”     Wardrick filed a petition for certification.

On March 17, 2014, this Court granted certification limited to

the issues of whether: “1) the Appellate Division erred in

                                  14
affirming defendant’s conviction in light of another panel’s

reversal of his co-defendant’s conviction arising out of the

same trial and alleged error; and 2) whether the trial court

erred in failing to set aside defendant’s conviction for first-

degree robbery.”   217 N.J. 291 (2014).

                               III.

                                A.

    McKinney argues that the appellate panel correctly

determined that the armed-robbery instruction constituted

reversible error, as it “fail[ed] in the most basic ways to

inform jurors that they must acquit for armed robbery if [they

had] a doubt about the armed element.”    According to McKinney,

the instruction was “structured in a way that had the clear

capacity to result in a verdict for armed robbery consisting

only of jury findings of the elements of unarmed robbery, an

intolerable result.”

                                B.

    Wardrick similarly argues that the jury instruction

constituted reversible error, as it did not properly instruct

the jury that it must unanimously agree, beyond a reasonable

doubt, that defendants were armed when they committed the

offense.   Wardrick contends that, because the jury did not find

defendants guilty of the weapons charges, “there was a viable


                                15
question as to whether all the jurors found the armed element of

robbery.”   According to Wardrick, the discrepancy may have

stemmed from jury confusion due to the erroneous instruction;

indeed, the jurors should have been informed that they must

acquit defendants of first-degree robbery if they were not

unanimously convinced that defendants were armed.

    Wardrick also argues that, under the law of the case

doctrine, the Wardrick panel, in reviewing his motion for

reconsideration, erred in affirming his conviction in light of

the Appellate Division’s disposition of McKinney’s appeal.

Wardrick urges that his “right to a fair trial . . . was just as

prejudiced as Mr. McKinney[’s] by that erroneous instruction.”

    According to Wardrick, the law of the case doctrine

“[e]nsures uniformity of decisions, and protects the

expectations of the parties”; thus, “‘when an issue is once

litigated and decided during the course of a particular case,

that decision should be the end of the matter,’” (quoting State

v. Hale, 127 N.J. Super. 407, 410 (App. Div. 1974)).   Wardrick

argues that, once the McKinney panel ruled on the issue, the

“Wardrick panel could not independently consider the issues on

appeal. . . .   The fact [that] the second panel ‘disagreed’ with

the first panel was immaterial and provided no basis not to

apply the law of the case doctrine.”



                                16
    In support of his argument, Wardrick cites to State v.

Ellis, 969 P.2d 1053 (Utah Ct. App. 1998), in which the Utah

Court of Appeals applied the law of the case doctrine to a co-

defendant’s proceeding under a separate appeal.   Wardrick also

cites cases in Florida, Alaska, and Iowa, where, according to

Wardrick, the courts applied the law of the case doctrine, even

for issues “not explicitly discussed in the first appellate

opinion,” and regardless of whether those prior decisions were

right or wrong.   (Citing Sanders v. State, 689 So.2d 410 (Fla.

Dist. Ct. App. 1997); Wolfe v. Arctic Bowl, Inc., 560 P.2d 758,

763 (Alaska 1977); State ex. rel. Goettsch v. Diacide Distribs.,

Inc., 596 N.W.2d 532, 537 (Iowa 1999)).

                                C.

    The State contends that defendants cannot meet the plain

error standard, as any error in the charge is harmless beyond a

reasonable doubt when considered in the context of the entire

charge and the overwhelming evidence against defendants.     Thus,

the State requests that the Court affirm the Wardrick panel’s

decision, reverse the McKinney panel’s decision, and reinstate

McKinney’s conviction for first-degree robbery.

    The State argues that the trial court’s instructions “were

complete and unambiguous, charging on all elements of each

respective offense, and instructing on the fundamental

principles of law that controlled the case.”   According to the

                                17
State, the robbery charge “complied with the Model Criminal Jury

Charge on robbery in the first-degree.”     The State contends that

despite the misstatement, the court clearly outlined the

complete charge for first-degree robbery.    When the judge

misspoke, the State asserts that she promptly informed the jury

of the error and offered a curative instruction, which did not

confuse or impair the instruction as a whole.    According to the

State, the fact that neither trial counsel objected to the

charge leads to the presumption that counsel did not believe the

charge was incorrect or confusing.    The State further points out

that the jury sheet listed only first-degree robbery under count

two.

       The State argues that the McKinney panel gave too much

weight to the inconsistent verdict, ignoring the fact that

“well-established legal principles” permit a jury to render

inconsistent verdicts as long as each charge is supported by

sufficient evidence in the record.    According to the State, the

evidence in the present case “amply supported the first-degree

robbery convictions.”    Furthermore, the State contends that

there are many potential explanations for why the jury was

unable to reach a decision regarding the weapons charges; yet,




                                 18
under the “Dunn/Powell3 rule,” the court should not engage in

“pure speculation” to investigate the verdict.

     The State also asserts that the law of the case doctrine

“directs discretion, but does not compel submission.”    According

to the State, one appellate panel is permitted to disagree with

the legal or factual conclusions of another, as the Appellate

Division is bound only by the decisions of this Court.     The

State maintains that the Wardrick panel properly considered and

“gave due deference” to the McKinney panel’s conclusion but

nonetheless reached a different result.

     Furthermore, the State submits that the law of the case

doctrine is inapplicable here because the two appeals were

“pending at the same time.”   Thus, “the Wardrick panel was not

being asked to reconsider the same issue in a subsequent

appeal.”

                                D.

     The Attorney General of New Jersey, appearing as amicus

curiae, urges the Court to reverse the judgment of the McKinney

panel and reinstate the conviction, and to affirm the judgment

of the Wardrick panel.




3 Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed.
356 (1932); United States v. Powell, 469 U.S. 57, 105 S. Ct.
471, 83 L. Ed. 2d 461 (1984).
                                19
    Amicus states that judges frequently misspeak when

administering jury charges but are “permitted to correct the

mistake without jeopardizing the entire trial.”   Amicus warns

that it would simply be untenable for the courts to permit

reversal every time a judge misspeaks.

    Amicus asserts that the jury instructions in this case did

not create reversible error, as the trial court “correctly

instructed the jury on the controlling law.”   According to

amicus, when read in context, the trial judge’s “minor,

immediately self-corrected mistake . . . could not have

substantially prejudiced defendants.”    Amicus argues that, by

disregarding the curative statement, the McKinney panel

“essentially raised a misstatement to the level of per se

reversible error that cannot be corrected.”    The Attorney

General further points out that defense counsel had multiple

opportunities to object to the charge; the co-defendants “should

not be rewarded for allowing an instruction to go to the jury

and then, once convicted, using the instruction as ammunition on

appeal.”

    Amicus contends that the McKinney panel’s analysis of the

inconsistent verdicts involved “improper speculation.”

According to amicus, inconsistent verdicts are acceptable and

non-reviewable so long as there is sufficient evidence in the

record to support the conviction.   The Attorney General urges

                               20
that, in this case, the record contained “more than sufficient

evidence” to support the conviction of first-degree robbery.

    Addressing Wardrick’s appeal, amicus contends that the

appellate panel appropriately disagreed with the McKinney panel.

The Attorney General submits that, although Appellate Division

opinions are binding on the lower courts, they are not binding

on other appellate panels; this principle is particularly true

when the previous decision “is erroneous and results in

injustice.”   The Attorney General urges that the law of the case

doctrine should be applied flexibly so as to “‘balance the value

of judicial deference for the rulings of a coordinate judge

against those factors that bear on the pursuit of justice and,

particularly, the search for truth.’”   (Quoting Lombardi v.

Masso, 207 N.J. 517, 538-39 (2011)).

    The Attorney General argues that although it is unusual for

different appellate panels to hear cases involving co-

defendants, it “does not mean . . . that the decision of the

panel that was released first controls.”   According to amicus,

the Wardrick panel gave “due consideration to the decision of

its sister panel” and articulated specific reasons why it

disagreed with the McKinney panel’s decision.

                                IV.

                                A.



                                21
    Earlier this term, in K.P.S., supra, the Court addressed

the application of the law of the case doctrine in the context

of appellate review of a criminal case.         221 N.J. at 270.   We

concluded that the doctrine had little, if any, vitality in that

context and disapproved the invocation of the doctrine to

resolve a criminal appeal. Ibid.

    In K.P.S., police executed a series of searches of one

person’s home.    Id. at 271.      Three persons were charged in an

indictment with numerous counts of aggravated sexual assault

based on evidence seized during those searches.         Ibid.   The

three co-defendants filed a joint motion to suppress.           Ibid.

Each claimed that the searches violated their federal and state

constitutional rights.     Ibid.    Following an evidentiary hearing,

the trial court denied the joint motion.         Id. at 272.

    Thereafter, each defendant entered a plea agreement and

pled guilty.   Id. at 272-73.      After sentencing, the three

defendants appealed their sentences and the denial of their

motions to suppress.      Id. at 273.     One defendant’s appeal was

heard by a panel of the Appellate Division, which affirmed the

order denying the motion to suppress in an unpublished opinion

issued in 2011.   Ibid.    Two years later, a different panel

addressed the appeal by the two other defendants, who raised

essentially the same issues as the other defendant.         Id. at 274.

The second panel affirmed the order denying the motions to

                                     22
suppress; in doing so it invoked the law of the case doctrine to

preclude review of the same issues raised by their co-defendant

and decided in his appeal.   Ibid.

    In its review of the appeal decided second, the Court

recognized that the principles underlying the law of the case

doctrine and collateral estoppel are similar.    Id. at 277.    We

emphasized that “[a] fundamental tenet of collateral estoppel is

that the doctrine cannot be used against a party unless that

party either participated in or was ‘in privity with a party to

the earlier proceeding.’”    Ibid. (quoting In re Estate of

Dawson, 136 N.J. 1, 20 (1994)).    That tenet prohibits

application of collateral estoppel if a party has not had a

“‘full and fair opportunity to litigate an issue.’”       Id. at 278

(quoting Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 337

(1996)).   Similarly, the law of the case doctrine cannot bar a

defendant from a full and fair opportunity for appellate review

of an order adjudicating a motion or other application simply

because another party received a ruling on similar issues based

on the same record.   Id. at 279-80.

    The Court emphasized in K.P.S. that application of the law

of the case doctrine in appellate proceedings conflicts with a

defendant’s due process rights.    Id. at 279.   Those rights can

only be satisfied if each defendant receives a full and fair



                                  23
review of his or her appeal to set aside an order or a verdict.

Id. at 279-80.

                                B.

    McKinney and Wardrick did not object to the jury

instruction at trial; the Court reviews the charge for plain

error.   R. 1:7-2; R. 2:10-2; see also State v. Singleton, 211

N.J. 157, 182 (2012).   To warrant reversal, the error must be

“clearly capable of producing an unjust result.”   R. 2:10-2.    We

have established that

          [i]n the context of jury instructions, plain
          error is “[l]egal impropriety in the charge
          prejudicially   affecting    the   substantial
          rights of the defendant and sufficiently
          grievous to justify notice by the reviewing
          court and to convince the court that of itself
          the error possessed a clear capacity to bring
          about an unjust result.”

          [State v. Camacho, 218 N.J. 533, 554 (2014)
          (quoting State v. Adams, 194 N.J. 186, 207
          (2008)).]

    The Court must not look at portions of the charge alleged

to be erroneous in isolation; rather, “‘the charge should be

examined as a whole to determine its overall effect,’” State v.

Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Wilbely, 63

N.J. 420, 422 (1973)), and “whether the challenged language was

misleading or ambiguous,” State v. Nelson, 173 N.J. 417, 447

(2002) (citing State v. Simon, 161 N.J. 416, 477 (1999)); see




                                24
also State v. Torres, 183 N.J. 554, 564 (2005); Wilbely, supra,

63 N.J. at 422.

    “An essential ingredient of a fair trial is that a jury

receive adequate and understandable instructions.”     State v.

Afanador, 151 N.J. 41, 54 (1997) (citing State v. Martin, 119

N.J. 2, 15 (1990)).   “Appropriate and proper jury instructions

are essential to 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)).     Jury instructions

have been described as “a road map to guide the jury[;] without

an appropriate charge, a jury can take a wrong turn in its

deliberations.”   Martin, supra, 119 N.J. at 15.

    The trial court has clear directives with regard to what

must be included in the charge.     The judge “should explain to

the jury in an understandable fashion its function in relation

to the legal issues involved.”     Green, supra, 86 N.J. at 287

(citing Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591-92

(1966)).   The trial judge must deliver “a comprehensible

explanation of the questions that the jury must determine,

including the law of the case applicable to the facts that the

jury may find.”   Id. at 287-88.    The trial judge must “instruct

the jury as to the fundamental principles of law which control

the case [including] the definition of the crime, the commission

of which is basic to the prosecution against the defendant.”

                                   25
Id. at 288 (quoting State v. Butler, 27 N.J. 560, 595-96

(1958)).

    “Because proper jury instructions are essential to a fair

trial, ‘erroneous instructions on material points are presumed

to’ possess the capacity to unfairly prejudice the defendant.”

State v. Bunch, 180 N.J. 534, 541-42 (2004) (quoting Nelson,

supra, 173 N.J. at 446); see also Jordan, supra, 147 N.J. at 422

(finding that some jury instructions are “so crucial to the

jury’s deliberations on the guilt of a criminal defendant that

errors in those instructions are presumed to be reversible”).

Therefore, “[e]rroneous instructions are poor candidates for

rehabilitation as harmless, and are ordinarily presumed to be

reversible error.”   Afanador, supra, 151 N.J. at 54 (citing

State v. Brown, 138 N.J. 481, 522 (1994)).   “This requirement of

a charge on a fundamental matter is more critical in a criminal

case when a person’s liberty is at stake.”   Green, supra, 86

N.J. at 289.

    In a case where, as here, the State argues that the error

is harmless because the trial judge correctly instructed the

jury in other components of the charge, “[t]he test to be

applied . . . is whether the charge as a whole is misleading, or

sets forth accurately and fairly the controlling principles of

law.”   State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div.

1997) (alteration in original) (quoting State v. Sette, 259 N.J.

                                26
Super. 156, 190-91 (App. Div.), certif. denied, 130 N.J. 597

(1992)), certif. denied, 153 N.J. 49 (1998).     “[T]he key to

finding harmless error in such cases is the isolated nature of

the transgression and the fact that a correct definition of the

law on the same charge is found elsewhere in the court’s

instructions.”   Ibid.

      In Jackmon, supra, the defendant argued that the trial

judge incorrectly charged the jury on accomplice liability

because the judge did not clearly distinguish the intent

required for the grades of the offense.     305 N.J. Super. at 284-

85.   Additionally, the defendant alleged that the trial judge

did not clearly establish that an attempt requires a purposeful

mens rea, even if another mental state could establish the

underlying crime.   Id. at 298.    The panel found reversible error

because the critical portions of the charge were not merely

“fleeting reference[s]” and “the entire charge was lengthy and

somewhat confusing.”     Id. at 300.

      Conversely, in State v. Smith, the panel concluded that the

judge “fully and accurately instructed the jury on the elements

of attempt” even though the instruction was given “during an

explanation of the law relating to another offense.”    322 N.J.

Super. 385, 399 (App. Div.), certif. denied, 162 N.J. 489

(1999).   The Appellate Division held that, based on the

defendant’s testimony, the overwhelming evidence that

                                  27
established his guilt, and the “appearance elsewhere in the jury

instructions of a proper charge[,] . . . the failure to define

attempt in the robbery charge did not prejudice defendant’s

rights.”   Id. at 400.

    A trial judge is permitted and encouraged to correct errors

that occur during trial.   A curative jury instruction is one

method to remedy trial error, and is sometimes required to

address testimony that should not have been heard by the jury,

see Verdicchio v. Ricca, 179 N.J. 1, 36 (2004), or to address

erroneous statements by attorneys in their closing arguments,

see Bender v. Adelson, 187 N.J. 411, 436-37 (2006).    In those

contexts, the decision to provide a curative instruction and the

content of that statement is left to the discretion of the trial

judge.   State v. Yough, 208 N.J. 385, 397 (2011).   When a trial

court has given an erroneous, misleading, or confusing

instruction, the trial court must take all appropriate measures

to assure that the instructions provide a clear and correct

statement of the law and the consequences if a jury finds that

the State has not established all essential elements of an

offense.

                                V.

    Defendants were tried together.   Both were found guilty by

the same jury, based on the same evidence, but received

disparate results on appeal:   McKinney’s conviction for first-

                                28
degree robbery was reversed, and he was granted a new trial on

that charge; Wardrick’s conviction was affirmed.    The disparate

results can be explained in part by the failure to assign both

defendants’ appeals to the same part of the Appellate Division.

The circumstances that permitted those appeals to be assigned to

different panels have been addressed and are unlikely to recur.

    The disparate results may also be explained by Wardrick’s

failure to argue, until he learned of the disposition of

McKinney’s appeal, that the first-degree robbery charge was

erroneous and the attempt to correct it compounded the error.

It was in the context of resolving Wardrick’s motion for

reconsideration that the Wardrick panel not only declined to

invoke the law of the case doctrine, but also conducted a full

review of the first-degree robbery charge, and concluded that

any error was harmless.

    The Wardrick panel correctly declined to apply the law of

the case doctrine with respect to the asserted error in the

first-degree robbery instruction.    The panel’s ruling is

consistent with our recent opinion in K.P.S., supra, in which we

held that due process dictates that each defendant is entitled

to a full and fair review of any order, judgment, or verdict

without regard to the disposition of an appeal filed by another

defendant in the same proceeding who happened to receive a

decision before his co-defendants.    221 N.J. at 278-79.    We

                               29
would be remiss however if we did not note that the better

practice would have been to transfer the Wardrick and McKinney

appeals to the same part of the Appellate Division as soon as

the appellate court recognized the calendar error.

    With both appeals before the Court, we turn to the central

issue of this appeal -- whether the first-degree robbery

instruction was erroneous and, if so, whether that error

requires a new trial.   We conclude that the instruction on

first-degree robbery as part of the conspiracy charge (count

one) and the first-degree robbery charge (count two) erroneously

referred to second-degree robbery.   Compounding the error, the

trial court did not provide an adequate curative instruction,

and delivered confusing directions regarding the circumstances

that required a guilty or not guilty verdict.   A new trial is

required for both defendants on the first-degree robbery count.

    The trial record was replete with evidence that the men who

entered Christopher’s apartment and the man who confronted

Melvin were armed.   The parties therefore agreed among

themselves, and the trial court concurred, that the jury would

not receive an instruction that it could consider second-degree

robbery as a lesser-included offense.   Once the trial court

agreed not to provide an instruction on the lesser-included

offense of second-degree robbery, the court was obliged to

fashion a charge that contained the essential elements of the

                                30
first-degree robbery offense with no mention of second-degree

robbery.   That is not what occurred.

    Instead the trial court utilized the Model Jury Charge for

first-degree robbery, Model Jury Charge (Criminal), “Robbery in

the First Degree (N.J.S.A. 2C:15-1)” (2010).    In providing the

jury instruction on first-degree robbery on count one --

conspiracy to commit first-degree robbery -- and count two --

first-degree robbery of Christopher -- the court immediately

introduced second-degree robbery to the jury.    In discussing the

facts that the jury must find to convict a defendant of

conspiracy to commit first-degree robbery and first-degree

robbery, the court provided the following charge:

                In order for you to find Jamil McKinney
           and Al-Tariq Wardrick guilty of robbery, the
           State is required to prove each of the following
           elements beyond a reasonable doubt:       [t]hat
           Jamil McKinney and Al-Tariq Wardrick were in
           the course of committing a theft; that while in
           the course of committing that theft, Jamil
           McKinney   and   Al-Tariq   Wardrick   knowingly
           inflicted bodily injury or the use of force upon
           another; or B, threatened another with or
           purposely put him in fear of immediate bodily
           injury.

The trial court proceeded to define each element of first-degree

robbery.   The court then instructed the jury about the

consequences of its various findings.    The court stated:

                To summarize, if you find that the State
           has not proven beyond a reasonable doubt any
           one of the elements of the crime of robbery as
           I have defined that crime to you, then you

                                 31
         must find Jamil McKinney and Al-Tariq Wardrick
         not guilty.

              If you find that the State has proven
         beyond a reasonable doubt that Jamil McKinney
         and Al-Tariq Wardrick committed the crime of
         robbery as I have defined the crime to you,
         but if you find that the State has not proven
         beyond a reasonable doubt that Jamil McKinney
         and Al-Tariq Wardrick were armed with or used
         or purposely threatened the immediate use of
         a deadly weapon at the time of the commission
         of the robbery, then you must find Jamil
         McKinney and Al-Tariq Wardrick guilty of
         robbery of the second degree.

              If you find that the State has proven
         beyond a reasonable doubt that the defendant
         committed the crime of robbery and was armed
         with a deadly weapon or used or threats of the
         immediate use of the deadly weapon at the time
         of the commission of the robbery, then you
         must find Jamil McKinney and Al-Tariq Wardrick
         guilty of robbery in the first degree.

              A section of this statute provides that
         []robbery is a crime -- hold on.

              Counsel, can we have a side bar just a
         moment?

         [(Emphasis added).]

Having recognized the erroneous instruction that would have

permitted a verdict of guilty of second-degree robbery and

having had a side-bar discussion with all counsel, the trial

court stated:

         Even as fast as I’m reading, I do know when
         something is not supposed to be in here, and
         so to just backtrack, I think I indicated that
         -- a portion of the charge that referred to
         robbery of the second degree.     There is no
         charge of robbery of the second degree. So
         that part is omitted.

                               32
    That curative instruction did not solve the problem and may

have compounded it.   To be sure, the trial court informed the

jury that second-degree robbery was not before them.    The trial

court however had just informed the jury that it was to convict

defendants of second-degree robbery if it found that the State

had not proven that Wardrick and McKinney were armed.   The trial

court never informed the jury that it must find Wardrick and

McKinney not guilty of first-degree robbery if it found that the

State had not proven that Wardrick and McKinney were armed.

    Then, in the course of the first-degree robbery charge

regarding another victim (count six), the trial court informed

the jury that it must find defendants not guilty if it found

that the State did not prove each element of the offense.     The

court then launched into a discussion of the consequence of

finding that the State had not proven that defendants were armed

as if second-degree robbery was a lesser-included offense.     The

trial court stated:

              To summarize, if you find the State has
         not proven beyond a reasonable doubt any one
         of the elements of the crime of robbery as I
         have defined that crime to you, then you must
         find Jamil McKinney and Al-Tariq Wardrick not
         guilty.

              If you find the State has proven beyond
         a reasonable doubt that Jamil McKinney and/or
         Al-Tariq Wardrick committed the crime of
         robbery, as I have defined that crime to you,
         but if you find that the State has not proven
         beyond a reasonable doubt that Jamil McKinney

                                33
         and Al-Tariq Wardrick was armed with or used
         or purposely threatened the immediate use of
         a deadly weapon at the time of the commission
         of a robbery, then you must find Jamil
         McKinney and Al-Tariq Wardrick guilty of a --
         again there is no charge of a second degree.

              If you find that the State has proven
         beyond a reasonable doubt that Jamil McKinney
         and/or Al-Tariq Wardrick committed the crime
         of robbery and was armed with a deadly weapon
         or used or threatened immediate use of a
         deadly weapon at the time of commission of a
         robbery, then you must find Jamil McKinney and
         Al-Tariq Wardrick guilty of robbery in the
         first degree.

         [(Emphasis added).]

    As we have just related, the trial court informed the jury

of each element of the first-degree robbery offense.    The court

emphasized that the State was required to prove each element

beyond a reasonable doubt.   The trial court expressly informed

the jury of the consequences if it found that the State had

carried its burden as to each element, but became sidetracked

when discussing the consequences of a finding that defendants

were not armed by referring to second-degree robbery.     Indeed,

the trial court committed the same error twice and twice missed

the opportunity to provide a clear and correct curative

instruction that the jury must find defendants not guilty of

first-degree robbery if it found that they were not armed.

Simply stating that second-degree robbery was not before the

jury provided insufficient guidance to the jury.


                                34
    Neither defendant objected to the conspiracy to commit

first-degree robbery or first-degree robbery charges.     We

therefore review the erroneous reference to second-degree

robbery in the context of the plain error standard.     See R.

2:10-2.     We do not hesitate to conclude that the erroneous

reference to second-degree robbery was “‘[l]egal impropriety . .

. prejudicially affecting the substantial rights of the

defendant sufficiently grievous to justify notice by the

reviewing court and to convince the court that of itself the

error possessed a clear capacity to bring about an unjust

result.’”    Jordan, supra, 147 N.J. at 422 (quoting State v.

Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.

Ct. 2254, 26 L. Ed. 2d 797 (1970)); accord Camacho, supra, 218

N.J. at 554.    The trial court’s initial error demanded a more

thorough and pointed curative instruction.     Simply stating that

“[t]here is no charge of robbery of the second degree . . . so

that part is omitted” was insufficient.    The confusion caused by

the trial court introducing second-degree robbery into the

charge and failing to adequately resolve that confusion had the

clear capacity to permit defendants to be found guilty of first-

degree robbery without a finding that they were armed.

    We recognize that this Court has approved of jury

instructions that simply state that the jury must find that the

State has proven each element of the offense beyond a reasonable

                                  35
doubt in order to find a defendant guilty.     See State v. Harris,

141 N.J. 525, 545 (1995).   The better practice, especially when

one element is the particular subject of dispute -- and required

in this instance -- is for the court specifically to inform the

jury that it must find the defendant not guilty if it fails to

find that element beyond a reasonable doubt.

                                VI.

    In summary, we reiterate our holding in K.P.S. that the

application of the law of the case doctrine in criminal

appellate proceedings by co-defendants violates the due process

right of each defendant to a full and fair review of each

defendant’s appeal.   The Wardrick panel properly declined to

apply that doctrine when it did not defer to the analysis of the

McKinney panel.

    We also conclude that the trial court’s erroneous reference

to second-degree robbery in the course of the jury instruction

on conspiracy to commit first-degree robbery and first-degree

robbery had no place in the instruction.     Accordingly, the

reference to second-degree robbery was error.     In addition, the

efforts to cure the error were confusing and ineffective.       The

jury was never expressly informed that it must find defendants

not guilty of first-degree robbery if it found that defendants




                                36
were not armed.   Thus, the instruction constituted reversible

error.4

                                VII.

     The judgment of the Appellate Division in State v. Wardrick

is reversed as to his conviction for first-degree robbery, and

the matter is remanded to the trial court for proceedings

consistent with this opinion.   The judgment is affirmed in all

other respects.   The judgment of the Appellate Division in State

v. McKinney is affirmed.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUDGE CUFF’s
opinion.




4 Before this Court, each defendant urged reversal only of the
first-degree robbery conviction (count two), even though the
same error affected the conspiracy to commit first-degree
robbery conviction (count one). On remand, defendants may raise
before the trial court the issue of the conspiracy charge and
the appropriate remedy.


                                 37
                 SUPREME COURT OF NEW JERSEY

NO.    A-74/75                               SEPTEMBER TERM 2013

ON CERTIFICATION TO            Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Appellant
      and Cross-Respondent,

             v.

JAMIL MCKINNEY, a/k/a JAMEEL
MCKINNEY, HAKIM MCKINNEY,
MALIK HOWARD and JAMIL
WARDRICK,

      Defendant-Respondent
      and Cross-Appellant.



DECIDED               August 27, 2015
                  Chief Justice Rabner                     PRESIDING
OPINION BY            Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST                                AFFIRM
CHIEF JUSTICE RABNER                       X
JUSTICE LaVECCHIA                          X
JUSTICE ALBIN                              X
JUSTICE PATTERSON                          X
JUSTICE FERNANDEZ-VINA                     X
JUSTICE SOLOMON                            X
JUDGE CUFF (t/a)                           X
TOTALS                                      7
                  SUPREME COURT OF NEW JERSEY

NO.       A-76                                   SEPTEMBER TERM 2013

ON CERTIFICATION TO                Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Respondent,

                 v.

AL-TARIQ WARDRICK,

      Defendant-Appellant.



DECIDED                   August 27, 2015
                      Chief Justice Rabner                     PRESIDING
OPINION BY                Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
                                         AFFIRM IN
                                           PART/
CHECKLIST                               REVERSE IN
                                           PART/
                                          REMAND
CHIEF JUSTICE RABNER                         X
JUSTICE LaVECCHIA                            X
JUSTICE ALBIN                                X
JUSTICE PATTERSON                            X
JUSTICE FERNANDEZ-VINA                       X
JUSTICE SOLOMON                              X
JUDGE CUFF (t/a)                             X
TOTALS                                       7
