                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1857-14T4

STATE OF NEW JERSEY,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                            January 9, 2017
v.
                                           APPELLATE DIVISION

ISAAC A. YOUNG,

     Defendant-Appellant.

________________________________________________________________

         Argued telephonically December          29,    2016    –
         Decided January 9, 2017

         Before   Judges       Espinosa,    Rothstadt,        and
         Currier.

         On appeal from Superior Court of New Jersey,
         Law Division, Salem County, Indictment No.
         13-09-00524.

         Justin T. Loughry argued the cause for
         appellant   (Loughry   and    Lindsay,  LLC,
         attorneys; Mr. Loughry, on the briefs).

         Joseph A. Glyn, Deputy Attorney General,
         argued the cause for respondent (Christopher
         S. Porrino, Attorney General, attorney for
         respondent; Mr. Glyn, of counsel and on the
         brief).

     The opinion of the court was delivered by

ROTHSTADT, J.A.D.

     Defendant    Isaac   A.   Young   appeals   from    a     judgment   of

conviction the Law Division entered after his first trial ended
in a mistrial and the jury in his retrial convicted him of

permitting or encouraging the release of a confidential child

abuse     record,    a    fourth-degree            offense,    N.J.S.A.    9:6-8.10b,

hindering his own apprehension or prosecution by giving a false

statement    to     law   enforcement,         a    disorderly    persons       offense,

N.J.S.A.    2C:29-3(b)(4),1         and   fourth-degree          false    swearing     by

inconsistent      statements,         N.J.S.A.        2C:28-2(a).         The    charges

against     defendant       arose   from       his    receiving     copies      of    the

Division     of     Youth     and     Family         Services'     (the     Division) 2

confidential        child     abuse       reports       that     substantiated         an

allegation of abuse against a candidate for mayor and giving

those records to a police officer for mailing to others for

political purposes.

    In addition, during the ensuing investigation, defendant

gave two contradictory statements to law enforcement.                            In his

first statement, he denied giving copies of the documents to the

police officer, while in his second statement, he admitted to

that conduct and claimed the earlier statement was based on an

1
       The September 11, 2013 indictment originally charged
defendant in the third-degree for hindering apprehension or
prosecution by giving a false statement to law enforcement,
N.J.S.A. 2C:29-3(b)(4), (count four) but this was later amended
to a disorderly persons offense.
2
    On June 29, 2012, the Division of Youth and Family Services
was renamed the Division of Child Protection and Permanency. L.
2012, c. 16.



                                           2                                    A-1857-14T4
incorrect    assumption.       According    to   defendant,      his    second

statement was a retraction of the first one.

     On     appeal,   defendant   argues     that     his    conviction      for

releasing    the   documents   must   be   vacated    because    the   statute

prohibiting the release of child abuse records does not apply to

his conduct and, as there was no offense for which he could

hinder his own apprehension, that his conviction for hindering

must also be vacated.      He also contends that the court erred in

instructing the jury that his testimony from his first trial was

not to be considered in support of his retraction defense, 3 and

by providing the "false in one, false in all" instruction.                   The

State disagrees and argues defendant violated the prohibition

against     disclosing   the   subject     document    and    therefore      his

conviction for that offense and hindering should stand.                It also

contends that the trial court properly instructed the jury in

accordance with defendant's agreement at trial and therefore no

error was committed.

     We have considered the parties' contentions in light of our

review of the record and the applicable legal principles.                     We

reverse defendant's conviction for encouraging the release of




3
    Defendant did not testify at his second trial.              His testimony
from the first trial was read into the record.



                                      3                                A-1857-14T4
the    confidential      document,      but     affirm     his     convictions          for

hindering and false swearing.

       The   facts    leading      to     defendant's       conviction           can    be

summarized as follows.          The events that gave rise to defendant's

prosecution occurred in the context of the 2012 mayoral election

in the City of Salem.           At the time, defendant was the executive

director of the city's housing authority.                        Defendant's friend

and    political     ally,   the     incumbent-mayor         Robert       Davis,        was

defeated     by    then-councilman         Charles        Washington,        who        was

eventually elected mayor.

       The   testimony    and    exhibits       adduced     at    trial,    including

portions of defendant's testimony from his first trial that were

read    to   the     jury,   established          that     defendant       came        into

possession    of   documents4      sent    by   the   Division       to    the    City's

police chief.      The documents advised the chief that the Division

substantiated      allegations     of     child    abuse    that    had    been        made

against Washington.          The allegations were later deemed to be

unsubstantiated by the Division.                The evidence also established

that defendant showed the documents to others in his office and

4
    The documents consisted of an unsigned letter addressed to
the Salem Community Center Board regarding the abuse charges
made against Washington, a letter from the Division to the
city's chief of police transmitting a Division "Confidential
Report of Substantiated Abuse / Neglect to Law Enforcement
Agencies" regarding Washington, and a city police department
prisoner log.



                                          4                                      A-1857-14T4
gave copies to a police officer, Sergeant Leon Daniels, so that

Daniels could distribute the documents to others for political

purposes.

    According to Daniels, defendant called him into his office

where Daniels saw "10 to 20 copies" of the documents5 sitting on

defendant's desk "along with a sheet of stamps and envelopes."

Defendant gave Daniels a voter registration list and asked him

to mail the documents to the individuals whose names he had

"underlined in red."        Daniels complied and, after handwriting

the addresses on the envelopes, sent the documents out that

night and called defendant to inform him.

    Washington found out about the letter's distribution and

called the city's police chief to his home and showed him the

documents that had been mailed out.         The chief "recognized the

handwriting on the[] envelopes" as being Daniels's, and reported

the incident to the Salem County Prosecutor's Office (SCPO).

The SCPO initiated an investigation into the release of the

confidential   documents.      Eventually   the   SCPO   determined   that

Terri Gross, a civilian clerk with the police department, had

obtained the documents from the department and given them to


5
      The city's police department's prisoner log purportedly
established that Washington had been arrested and jailed in
connection with the allegations.       As it turned out, the
individual identified in the log was Washington's relative.



                                   5                             A-1857-14T4
Mayor Davis, and that defendant "had nothing to do with" Gross's

release of the documents to Davis.6

       During the investigation, defendant and Daniels initially

gave    conflicting   versions   about   what   transpired   between   them

regarding the documents.         Daniels stated that he had received

the documents from defendant and mailed them out at defendant's

instruction.

       On the same day that Daniels gave his statement, defendant,

with an attorney present, gave his first sworn statement to the

SCPO.    Defendant stated he had received the Division records in

an anonymous mailing and made "maybe one or two copies . . . to

show the folks at the office," and that he "may have made a

copy" to bring to a community center, where he sat on the board

of directors, but denied mailing them to anyone.              He admitted

showing the documents to Daniels, but denied giving Daniels any

copies because Daniels "already had it."          Defendant also denied

ever having seen the envelopes in which the mailings were sent

and giving the documents to anyone to distribute.

       According to Daniels, defendant came to his house later

that day and asked him what he had told the SCPO.                 Daniels


6
    The grand jury charged Gross under the same indictment as it
charged defendant. She was tried separately and convicted. Her
appeal from her conviction is pending. See State v. Gross, No.
A-3010-14.



                                    6                             A-1857-14T4
stated to defendant that he had told the truth and defendant

should do the same, and that defendant said he would go back to

the SCPO and "come clean."

      Defendant returned to the SCPO more than a month later with

an attorney and gave another sworn statement.                         Defendant said

Daniels approached him "maybe three or four weeks after the

primary" to request copies of the anonymous letters that had

been sent out — not the Division records — but that he "didn't

acknowledge [Daniels's] request."               He stated Daniels approached

him again "sometime in July" for copies of the Division records

and for a third time "maybe a couple weeks" later, at which

point he made "four or five" copies of the Division documents

and   the   prisoner    log    and    gave     them   to    Daniels,     along    with

stamps, envelopes, and the voter registration list, so Daniels

could send them to "his fellow police officers."

      At    defendant's       first       trial,    he     testified     about    his

inconsistent statements.            According to his testimony, defendant

received the Division's documents in June or July 2012 in an

anonymous    mailing,     gave   Daniels       copies      of   the   documents   and

envelopes    in   response     to     a   request     Daniels    made,    but    never

directed Daniels to mail them out.                 Regarding the discrepancies

between his two statements, he stated that when he was first

asked if he had ever given the documents to anyone he said no




                                           7                                A-1857-14T4
because    he    "wasn't     really   thinking    that    [the   interviewing

officers were] talking about a police officer, because it was

one of their own" and that he had returned to the SCPO to

"clarify things" with his second statement.

    After       defendant's    arrest,     and   before   his    first    trial,

defendant filed a motion to dismiss the charge relating to the

unlawful   release    of     the   confidential    documents.        Defendant

argued that the statute he was charged with violating, N.J.S.A.

9:6-8.10b, did not apply to his conduct.             The court denied that

motion, stating that:

           The defense reading of the statute would
           narrow it to such a point that it would
           basically become ineffective to anyone but a
           person, in this case [the person] in the
           police department who did it, even if that
           person had multiple co-conspirators that
           were outside the department that assisted or
           that encouraged or that caused it to happen.

    After defendant's conviction, the court sentenced defendant

to concurrent terms of probation and entered the judgment of

conviction.      This appeal followed.

    In his appeal, defendant presents three arguments:

                   POINT I

                   THE    COURT'S    DEFINITION    OF
                   "RELEASE"     AND     ITS     JURY
                   INSTRUCTIONS CREATED A NEW CRIME;
                   THE WORDS OF THE STATUTE DO NOT
                   PENALIZE THE CONDUCT FOR WHICH THE
                   STATE CHARGED MR. YOUNG AND FOR
                   WHICH THE JURY CONVICTED, AS MR.



                                       8                                 A-1857-14T4
              YOUNG   DID    NOT   RELEASE    THE
              DOCUMENTS WITHIN THE MEANING OF
              THE STATUTE AND THE STATUTE DOES
              NOT CREATE ANY GENERAL DUTY OF
              CONFIDENTIALITY APPLICABLE TO A
              CITIZEN WHO DID NOT RECEIVE THE
              DOCUMENT FROM THE "DEPARTMENT" SO
              THAT MR[.] YOUNG WAS NOT UNDER ANY
              LEGAL   OBLIGATON   TO   KEEP   THE
              DOCUMENTS CONFIDENTIAL.     (Raised
              Below).

              POINT II

              WITH   MR.  YOUNG   COMMITTING   NO
              CONDUCT CONSTITUTING AN OFFENSE
              UN[D]ER TITLE 9:10A AND 10B, THERE
              CAN    BE   NO    CONVICTION    FOR
              "HINDERING APPREHENSION."      (Not
              Raised Below).

              POINT III

              THE JURY INSTRUCTIONS THAT PERTAIN
              TO   OR   AFFECT   THE    RETRACTION
              DEFENSE PLACED TOO MANY STRICTURES
              ON   ITS   APPLICATION,    INCLUDING
              REQUIRING THE JURY TO IGNORE ANY
              ADDITIONAL "RETRACTIVE" ASPECTS OF
              THE DEFENDNAT'S [SIC] IN COURT
              TESTIMONY   AT   THE   FIRST   (MIS)
              TRIAL, AND INCLUDING A "FALSE IN
              ONE" CHARGE THAT WAS PARTICULARLY
              INAPPOSITE IN THE CONTEXT OF A
              RETRACTION DEFENSE. (Not Raised
              Below).

    We first address defendant's contention that his conduct

did not violate the prohibition against the release of Division

records because he did not receive them "from the department."

He argues the trial court erred initially in denying his motion

to dismiss the indictment for that offense and later in its



                               9                       A-1857-14T4
instruction to the jury regarding the definition of "release."

According to defendant, the court's definition of release — "to

permit to be issued, shown and published or equivalent terms" —

"defined    [the        term]   so   broadly           as   to    permit     the    criminal

condemnation      of     conduct     that        did    not      offend     [N.J.S.A.        9:6-

8.10b]."     He contends the court's actions violated due process

by   imposing       a     previously-nonexistent                 obligation        upon       all

individuals to maintain the confidentiality of Division records,

and that the doctrine of lenity applies to limit the expansion

of this obligation to those outside the Division.

     The    State       counters     and    contends          that    the    obligation        to

maintain the confidentiality of Division records is not limited

to the Division alone.             It relies upon the language in N.J.S.A.

9:6-8.10b,    which       prohibits        the    release        of   records      by    "[a]ny

person," and N.J.S.A. 9:6-8.10a, which provides that Division

records    "may    be     disclosed    only        under      circumstances        expressly

authorized under" the statute, and the purpose and history of

the relevant legislation.

     Our resolution of the parties' dispute requires us at the

outset to turn to the language of the applicable statutes.                                      In

order to determine if a person, like defendant, who obtains a

confidential document from sources other than the Division, and

who did not encourage their original release, can be subject to




                                             10                                         A-1857-14T4
the   statute's   prohibitions,    we   apply    our   "well-settled"

"principles governing statutory interpretation[:]"

          We begin with the statutory language.     [In
          re Kollman, 210 N.J. 557, 568 (2012)]. "We
          ascribe   to   the  statutory   words   their
          ordinary meaning and significance, and read
          them in context with related provisions so
          as to give sense to the legislation as a
          whole."   DiProspero v. Penn, 183 N.J. 477,
          492 (2005) (citations omitted).    "When that
          language 'clearly reveals the meaning of the
          statute, the court's sole function is to
          enforce the statute in accordance with those
          terms.'"   State v. Olivero, 221 N.J. 632,
          639 (2015) (quoting McCann v. Clerk of
          Jersey City, 167 N.J. 311, 320 (2001)).

          [State v. Walters, 445 N.J. Super. 596, 601
          (App. Div. 2016).]

See also State v. Shelley, 205 N.J. 320, 323 (2011).        "We will

not 'rewrite a plainly-written enactment of the Legislature [or]

presume that the Legislature intended something other than that

expressed by way of the plain language.'"       Marino v. Marino, 200

N.J. 315, 329 (2009) (alteration in original) (quoting O'Connell

v. State, 171 N.J. 484, 488 (2002)).

      Where it is not clear whether something is permitted under

a criminal statute, the benefit of this lack of clarity should

accrue to the defendant.   If an ambiguity in a criminal statute

is not resolved by reviewing the text and extrinsic sources, the

rule of lenity dictates that the ambiguities must be interpreted

in favor of the defendant.    State v. Sumulikoski, 221 N.J. 93,




                                  11                         A-1857-14T4
110    (2015).        Thus,     "all    penal      statutes    are     to   be   strictly

construed."       State v. Twiggs, 445 N.J. Super. 23, 36 (App. Div.

2016) (citing State v. D.A., 191 N.J. 158, 164 (2007)).

       Also,     when    the    language      does     not    yield    an    unambiguous

interpretation, we continue the process to discern legislative

intent,      interpreting        statutory         language    "in    accordance      with

common sense" and may "consider the entire legislative scheme of

which a particular provision is but a part."                        Morristown Assocs.

v. Grant Oil Co., 220 N.J. 360, 380 (2015).                           "[W]e may [also]

turn    to   extrinsic         evidence,      'including       legislative       history,

committee        reports,         and      contemporaneous             construction.'"

DiProspero, supra, 183 N.J. at 492-93 (citation omitted); see

also Burnett v. Cty. of Bergen, 198 N.J. 408, 421 (2009).                            There

are many tools available for our analysis, but only one goal.

"Regardless      of     the    materials      relied    upon    and    the    analytical

tools employed, in the final analysis, courts should seek to

effectuate the fundamental purpose for which the legislation was

enacted."        In     re    Young,    202     N.J.    50,    64    (2010)      (citation

omitted).

       The plain language of N.J.S.A. 9:6-8.10a requires that the

Division and any person or entity to which the Division lawfully

releases information, maintain the confidentiality of reports of

child abuse, including information gathered during investigation




                                              12                                  A-1857-14T4
of those reports.          New Jersey's child welfare laws impose an

obligation that "[a]ny person having reasonable cause to believe

that a child has been subjected to child abuse or acts of child

abuse [to] report the same immediately to the Division . . . ."

N.J.S.A. 9:6-8.10.         Reports of abuse made to the Division and

"all   information     obtained      by      [the      Division]       in    investigating

such reports" must be kept confidential.                     N.J.S.A. 9:6-8.10a(a).

That information, however, "may be disclosed[, but] only under

the circumstances expressly authorized" by the statute.                                    Ibid.

The    statute    specifies      various          entities    and      people        to    whom

disclosure can be made under various conditions.                             N.J.S.A. 9:6-

8.10a(b)7-(g).         Among     them        is     "[a]     police         or     other    law

enforcement      agency   investigating            a   report     of     child      abuse     or

neglect."     N.J.S.A. 9:6-8.10a(b)(2).

       The   statute      imposes        a    similar        duty      upon        authorized

recipients to maintain the confidentiality of the information

disclosed to them by the Division.                         The prohibition against

disclosure       is   included      in       subsection       b     of       the     statute,

immediately after it delineates the twenty–three agencies and

entities to which the Division may disclose the information.                                  It

states:


7
     N.J.S.A. 9:6-8.10a(b)(1)-(23) sets forth exceptions to the
confidentiality requirements of N.J.S.A. 9:6-8.10a(a).



                                             13                                      A-1857-14T4
            Any individual, agency, board, court, grand
            jury, legislative committee, or other entity
            which receives from the department the
            records   and   reports   referred   to   in
            subsection a., shall keep the records and
            reports, or parts thereof, confidential and
            shall not disclose the records and reports
            or parts thereof except as authorized by
            law.

            [N.J.S.A. 9:6-8.10a(b) (emphasis added).]

      Pursuant to N.J.S.A. 9:6-8.10a(e), where the Division has

substantiated an allegation of child abuse, it is required to

"forward    to    the     police    or    law    enforcement          agency        in   whose

jurisdiction the child named in the report resides," specific

information       about    the     incident          including   "the          identity      of

persons alleged to have committed child abuse or neglect and of

victims of child abuse or neglect, . . . the nature of the

allegations,      and     other    relevant      information          .   .    .    ."      The

statute    requires       that     once   received,          "[t]he       police      or    law

enforcement agency shall keep such information confidential."

Ibid.

      The statute, therefore, prohibits the Division or anyone

who   receives     confidential          documents       in    accordance           with    the

statutes      from         failing        to         maintain         the          documents'

confidentiality.          The next statute, N.J.S.A. 9:6-8.10b, imposes

a penalty upon "[a]ny person who willfully permits or encourages

the     release    of     the    contents       of     any    record      or       report    in




                                            14                                       A-1857-14T4
contravention of this act . . . ."             N.J.S.A. 9:6-8.10b (emphasis

added).     That statute makes a release "a misdemeanor . . .

subject[ing a violator] to a fine of not more than $1,000.00, or

to imprisonment for not more than 3 years, or both."                Ibid.      See

also N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J. Super.

390, 400 (App. Div. 1998) ("Violation of the confidentiality of

this information is said to be a 'misdemeanor.'").8

     We    conclude     that   because       the   Legislature    specifically

limited culpability under the statute to authorized individuals

or   entities    that    receive       confidential    documents     from      the

Division   but   then   fail    to     maintain    their   confidentiality      or

anyone    who   encourages     their    improper    release,     there   was    no

evidence adduced at defendant's trial that he violated the plain

language of N.J.S.A. 9:6-8.10b.              It was undisputed that he did

not receive any documents from the Division or from Gross, or

that he encouraged Gross to release the documents to him or

anyone else.9     Defendant claimed he received the documents in an


8
    "[A] crime defined by any statute of this State other than
[the criminal] code and designated as a misdemeanor shall
constitute for the purpose of sentence a crime of the fourth
degree."   N.J.S.A. 2C:43-1(b).  Therefore, imprisonment for a
violation of N.J.S.A. 9:6-8.10b is limited to eighteen months.
See N.J.S.A. 2C:43-6(a)(4).
9
     According to Gross, she gave the documents to Davis, but
there was no direct evidence that Davis gave them to defendant.




                                        15                               A-1857-14T4
anonymous mailing sent to him and there was no evidence to the

contrary.

      Therefore, applying the statute's clear language, the trial

court erred by not dismissing on its own motion the charge that

defendant violated N.J.S.A. 9:6-8.10a(b).                       See R. 3:18-1 ("At

the   close   of    .    .    .   evidence    .   .   .    ,   the   court   shall,    on

defendant's motion or its own initiative, order the entry of a

judgment of acquittal of one or more offenses charged in the

indictment    or    accusation       if   the     evidence      is   insufficient      to

warrant a conviction. . . .")(emphasis added).10                      While we do not

take issue with the court's denial of defendant's motion to

dismiss    his     indictment       before    trial       because    of   the   court's

belief    there    was       evidence   presented         to   the   grand   jury   that

defendant somehow conspired with Gross or others for the release

of the documents, we find no support in the record for the court

allowing the matter to go to the jury in the absence of any

evidence to support a conviction on the charge of releasing

confidential documents.             Accordingly, defendant's conviction for

that offense must be vacated.




10
     Because we reach the conclusion that the conviction must be
vacated and the indictment dismissed, we choose not to address
defendant's argument regarding the trial court's jury charge as
to the definition of the offense and the meaning of the word
"release."



                                             16                                 A-1857-14T4
       Despite      our      conclusion      that      defendant's      conduct        did    not

constitute a violation of N.J.S.A. 9:6-8.10a(b)'s prohibition

against       disclosure,           we    disagree        with    defendant        that       his

conviction for hindering by making a false statement to police

should have been dismissed as well.                        We agree with the State's

contention that N.J.S.A. 2C:29-3(b)(4) "does not require that

defendant      actually        be        charged    with    an     offense        or   that     a

conviction         be   successful"         for    a   defendant       to   be     criminally

liable       for    hindering        an     investigation         or      prosecution         for

committing the underlying offense in order to be guilty.

       As defendant did not raise this challenge to his hindering

conviction         before     the    trial    court,       we    review     his    claim      for

"plain error."          R. 2:10-2 (any error will be disregarded unless

it was "clearly capable of producing an unjust result . . . .").

Applying that standard, we conclude the trial court did not

commit any error even though defendant was improperly convicted

of releasing confidential child abuse records.

       The    hindering        statute      under      which     defendant       was   charged

provides in pertinent part: "A person commits an offense if,

with     purpose        to    hinder        his     own    detention,        apprehension,

investigation, prosecution, conviction or punishment . . . for




                                               17                                      A-1857-14T4
an offense[11] . . . he . . . [g]ives false information to a law

enforcement officer . . . ."          N.J.S.A. 2C:29-3(b)(4) (emphasis

added).12    At trial, the jury had sufficient evidence to support

its finding that when defendant gave his first statement to law

enforcement he committed a violation of the hindering statute.

Daniels     testified   to   the   fact   that   defendant   gave   him   the

documents and defendant himself admitted as much in his second




11
    The New Jersey Code of Criminal Justice defines an "offense"
as "a crime, a disorderly persons offense or a petty disorderly
persons offense unless a particular section in this code is
intended to apply to less than all three." N.J.S.A. 2C:1-14(k).

     Thus, the underlying offense with which defendant was
charged — the release of confidential Division records —
constitutes an offense for purposes of the hindering statute.
See N.J.S.A. 2C:1-14(k); N.J.S.A. 9:6-8.10b ("Any person who
willfully permits or encourages the release of the contents of
any record or report in contravention of this act shall be
guilty of a misdemeanor . . . .").
12
     The grading of the offense is dependent upon a defendant's
conduct and the nature of the underlying charge.    The statute
states in relevant part:

             [T]he offense under subsection b. of this
             section is a crime of the third degree if
             the conduct which the actor knows has been
             charged or is liable to be charged against
             him would constitute a crime of the second
             degree or greater.  The offense is a crime
             of the fourth degree if such conduct would
             constitute a crime of the third degree.
             Otherwise  it   is  a   disorderly persons
             offense.

             [N.J.S.A. 2C:29-3(b)(emphasis added).]



                                     18                             A-1857-14T4
statement,     after   giving    an    earlier       sworn    statement      to      the

contrary.

      The evidence presented at trial required the court to allow

the   jury    to   determine    whether      defendant       was   guilty       of   the

offense.      Once the jury made its determination, the court did

not commit any error, let alone plain error, by not dismissing

defendant's conviction on the hindering charge.                     Regardless of

whether defendant actually committed the offense for which he

was   under    investigation    at    the    time    he   spoke    to     police,    he

violated the statute by giving a false statement to the police

during the course of their investigation.                 We have no reason to

disturb his conviction.

      We also reject defendant's contention that his conviction

for false swearing should be vacated because the court erred in

its instructions to the jury.               According to defendant, "[t]he

court did not instruct the jury to examine [defendant's first

trial's]      in   court   testimony    as    a     potential      part    of    [his]

retraction [defense], but rather only to look at the in court

testimony . . . as it might bear on [defendant's] credibility."

He argues the jury should have been permitted to consider his

testimony at his first trial only as evidence in support of his

retraction defense, as it explained why his second statement to

police was inconsistent with his first one.




                                       19                                    A-1857-14T4
    In response, the State argues that defendant invited any

purported     error       in     the     court's     instruction            regarding       the

retraction       defense       by     repeatedly      agreeing         to     the     court's

proposed    instruction,          thereby    barring      his     claim       of    error      on

appeal.      The       State    urges,     however,    that      the     court      properly

instructed the jury that it could consider defendant's testimony

at his first trial only for purposes of determining credibility

— not as evidence of retraction — because his testimony did not

retract his prior statements and was not made "in the course of

the same proceeding or matter" as his earlier statements.                                   The

State     also     argues       the      instruction      was      necessary          because

instructing       the    jury       otherwise     would     have       risked       the    jury

convicting defendant of false swearing based on inconsistencies

between his statements and his testimony, which was not charged

in the indictment, and would have violated due process.

    We      review       defendant's        argument      under        the    plain       error

standard,     R.       2:10-2,      as   defendant     also       never       raised       this

contention       before     the     trial    court.         In     the       context      of    a

challenge to a court's jury instructions, "plain error requires

demonstration of 'legal 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




                                             20                                      A-1857-14T4
clear capacity to bring about an unjust result.'"                        State v.

Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187

N.J. 275, 288-89 (2006)).       We view "[t]he alleged error . . . in

the totality of the entire charge, not in isolation."                          Nero,

supra, 195 N.J. at 407 (quoting Chapland, supra, 187 N.J. at

288-89).       Where   no   objection    is   raised   at       trial,    we   will

"presum[e] that the charge was not error and was unlikely to

prejudice the defendant's case," State v. Singleton, 211 N.J.

157, 182 (2012), and any error will be disregarded unless it

constitutes plain error, in that it was "clearly capable of

producing an unjust result . . . ."           R. 2:10-2.

    When   a    defendant    "invites"    the   error,      a    more    stringent

standard applies, and "relief will not be forthcoming on a claim

of error by that defendant."            State v. Jenkins, 178 N.J. 347,

358 (2004).      "The [invited-error] doctrine prevents litigants

from 'playing fast and loose' with, or otherwise manipulating,

the judicial process."        Id. at 359 (quoting State v. Gonzalez,

142 N.J. 618, 632 (1995)).          A "defendant cannot beseech and

request the trial court to take a certain course of action, and

upon adoption by the court, take his chance on the outcome of

the trial, and if unfavorable, then condemn the very procedure

he sought and urged, claiming it to be error and prejudicial."

Id. at 358 (quoting State v. Pontery, 19 N.J. 457, 471 (1955)).




                                    21                                    A-1857-14T4
"In other words, if a party has 'invited' the error, he is

barred from raising an objection for the first time on appeal."

State v. A.R., 213 N.J. 542, 561 (2013).

    Applying these standards, we conclude the court did not

commit any error in its instruction to the jury about using

defendant's testimony from his first trial only for credibility

purposes, rather than as evidence of a false statement or his

retraction.   In any event, even if the court committed an error

in its charge, it was clearly invited and certainly not plain

error.

    N.J.S.A. 2C:28-2(a) provides "A person who makes a false

statement under oath or equivalent affirmation, or swears or

affirms the truth of such a statement previously made, when he

does not believe the statement to be true, is guilty of a crime

of the fourth degree."    It also addresses situations where a

defendant made inconsistent statements.    The statute states:

         Where   the   defendant   made  inconsistent
         statements   under    oath   or   equivalent
         affirmation, both having been made within
         the period of the statute of limitations,
         the prosecution may proceed by setting forth
         the inconsistent statements in a single
         count alleging in the alternative that one
         or the other was false and not believed by
         the defendant. In such case it shall not be
         necessary for the prosecution to prove which
         statement was false but only that one or the
         other was false and not believed by the
         defendant to be true.




                               22                          A-1857-14T4
             [N.J.S.A. 2C:28-2(c).]

       The statute also permits a defendant to assert a defense of

retraction as set forth in N.J.S.A. 2C:28-1(d).               That statute

states "[i]t is an affirmative defense . . . that the actor

retracted the falsification in the course of the proceeding or

matter in which it was made prior to the termination of the

proceeding or matter without having caused irreparable harm to

any party."      N.J.S.A. 2C:28-1(d).         "To retract means to take

back what was said; to recant."             Model Jury Charge (Criminal),

N.J.S.A. 2C:28-2(a) "Affirmative Defense of Retraction" (2002) ;

Model Jury Charge (Criminal), N.J.S.A. 2C:28-2(c) "Affirmative

Defense of Retraction" (2003).

       The   indictment   against   defendant    charged   him    with   false

swearing as a result of his giving two inconsistent statements

to law enforcement while under oath.            The charge had nothing to

do with his testimony from his first trial that was read to the

jury at his second trial.        As noted, in one he denied giving the

Division report to Daniels, and in the other he admitted that he

did.    At his first trial, he attempted to explain why he gave a

different     statement   from   the    first.      The    jury   determined

defendant was guilty of committing the offense of false swearing

under subsection c of the statute.




                                       23                            A-1857-14T4
       Defendant's          challenge    to     the    court's      charge       about      the

limited use of his first trial's testimony is undermined by the

record,      which    reveals     that    the       charge    about     which    defendant

complains was given in response to concerns he raised and with

his agreement.          During the charge conference, defense counsel

agreed that defendant's first trial testimony was not intended

to retract either statement he gave to law enforcement.                                 Also,

counsel raised a concern that the jury might think his first

trial's testimony could be used as a basis for convicting him of

making a false statement if the jury believed that his trial

testimony was not truthful.               He expressly agreed with the court

that   the     jury    could     "use    [the       first     trial's      testimony]        to

determine whether [defendant] was truthful in giving statements

[he    gave    to     law    enforcement],          but   not    to   giving       a    false

statement" as charged in the indictment.

       After the charge conference, the court instructed the jury

on the elements of the offense consistent with the model jury

charge and specifically identified the two statements made by

defendant to law enforcement as the basis for the charge against

him.    It also explained the defense of retraction, relying again

upon   the    model     jury    charge,       and     told    the   jury    that       it   was

defendant's     position        that    the     second       statement     was    given     in

order to retract defendant's first one.                      It also made clear that




                                              24                                   A-1857-14T4
defendant's first trial's testimony had nothing to do with the

charge against him and should only be considered for credibility

purposes.     Defendant never raised any objection to the charge.

       During the course of their deliberations, the jurors raised

a question as to the false swearing charge.                 While conferring

with counsel, the court suggested that it would tell the jurors

that   they   had   to   decide   whether    the   second   statement     was    a

retraction.     Defense counsel agreed.        The court then re-read its

charge on false swearing, told the jurors it could only use the

first-trial's testimony for credibility purposes, and that the

jury should determine whether defendant's second statement to

law enforcement was a retraction of the first.                Defendant did

not raise any objection to the court's instructions and never

requested that his first-trial's testimony be the basis of his

retraction defense.

       As defendant did not object to the charge at the time, it

is "presum[ed] that the charge was not error and was unlikely to

prejudice the defendant's case."            Singleton, supra, 211 N.J. at

182.    Moreover, in any event, we find no merit to defendant's

contention that his trial testimony, which essentially clarified

his second statement's explanation for denying he gave Daniels

copies of the subject documents, constituted a retraction as

contemplated by the statute.        His conviction is affirmed.




                                      25                                A-1857-14T4
      Finally, defendant contends that the court should not have

given    the   jury   a    "false     in    one,   false   in   all"   instruction

because doing so "virtually instructed the jury to reject the

retraction defense."         Again, because defendant did not challenge

this charge at trial we review the court's instruction for plain

error.    R. 2:10-2.        We find no merit to defendant's argument as

we discern no error by the court instructing the jury with this

charge either.

      The "false in one, false in all" charge instructs the jury

that if the jurors find that any witness "willfully or knowingly

testified falsely to any material facts in the case, with intent

to deceive [them], [the jury] may give such weight to his or her

testimony as [they] may deem it is entitled."                   Model Jury Charge

(Criminal), "False in One False in All" (1991).                        It has been

long recognized that the issuance of a false in one, false in

all charge rests in the sound discretion of the trial judge.

See State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied,

364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961); State v.

Fleckenstein, 60 N.J. Super. 399, 408 (App. Div.) (noting that

the     evidential        inference        of    repetitive     falsity   is     not

mandatory), certif. denied, 33 N.J. 109 (1960).

      In light of the conflicting evidence about statements made

by defendant to law enforcement officers and his first-trial's




                                            26                             A-1857-14T4
testimony    attempting        to   explain      those   inconsistencies,       we

discern no abuse in the trial court's discretion by its charging

the   jury   with    this      charge.        Defendant's   arguments    to    the

contrary about the charge's impact upon his retraction defense

are without sufficient merit to warrant further discussion in a

written   opinion.        R.   2:11-3(e)(2).        Suffice   it   to   say   that

defendant's statements were not "[i]nadvertent misstatements or

immaterial falsehoods," State v. D'Ippolito, 22 N.J. 318, 324

(1956), and provided a sufficient basis for the court to include

the charge in its instructions to the jury.

      Defendant's conviction for violating N.J.S.A. 9:6-8.10b is

vacated and the indictment as to that charge is dismissed.                     His

convictions for hindering by giving a false statement, N.J.S.A.

2C:29-3(b)(4),      and     false   swearing,      N.J.S.A.   2C:28-2(a)       are

affirmed.    The matter is remanded to the trial court for entry

of an amended judgment of conviction consistent with our opinion

and resentencing.      We do not retain jurisdiction.




                                         27                              A-1857-14T4
