                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0373-17T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

RODNEY F. BATES, a/k/a
RODNEY F. BATES, JR.,

     Defendant-Appellant.
______________________________

                    Submitted December 19, 2018 – Decided June 10, 2019

                    Before Judges Nugent and Reisner.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 15-12-3508.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Tamar Y. Lerer, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Jason Magid, Assistant
                    Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant appeals from his conviction of the second-degree burglary of

his sister's home and the third-degree aggravated assault of his niece. He also

appeals his aggregate sentence of ten years in prison, eighty-five percent of

which is to be served without parole eligibility, a requirement of the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2. He presents the following arguments

for our consideration:

                            POINT I
            THE AMENDMENT OF THE INDICTMENT, THE
            MORNING   TRIAL    BEGAN   AND    OVER
            DEFENDANT’S    OBJECTION,     CHARGING
            DEFENDANT WITH A MORE SERIOUS OFFENSE
            THAN THAT FOUND BY THE GRAND JURY
            CONTRAVENED HIS RIGHT TO INDICTMENT BY
            THE GRAND JURY AND DEPRIVED HIM OF
            NOTICE OF THE PENAL CONSEQUENCES OF
            THE CHARGES.

                             POINT II
            THE JURY INSTRUCTION ON BURGLARY LEFT
            OPEN THE POSSIBILITY OF A NON-UNANIMOUS
            VERDICT AND WAS NOT SUFFICIENTLY
            TAILORED TO THE FACTS OF THE CASE. FOR
            BOTH REASONS, THE BURGLARY CONVICTION
            MUST BE REVERSED. (NOT RAISED BELOW)

                  A. The Jury Charge In This Case Was
                  Insufficient To Ensure a Unanimous
                  Verdict.

                  B. The Jury Instruction on Burglary Was

                                                                       A-0373-17T3
                                      2
                  Insufficient To Ensure That Defendant
                  Was Properly Convicted Of Burglary.

                            POINT III
            THE TRIAL COURT’S REFUSAL TO SANITIZE
            THE 9-1-1 CALL ALLOWED THE BACKDOOR
            ADMISSION    OF   THE     OTHER-BAD-ACT
            EVIDENCE THAT THE COURT HAD RULED WAS
            INADMISSIBLE AT TRIAL. THE RESULTING
            PREJUDICE NECESSITATES REVERSAL OF
            DEFENDANT'S CONVICTIONS.

                            POINT IV
            THE TRIAL COURT FAILED TO ACCOUNT FOR
            DEFENDANT’S     AGE     AND   PHYSICAL
            INFIRMITIES WHEN SENTENCING DEFENDANT,
            RESULTING IN AN EXCESSIVE SENTENCE.
            THEREFORE, THE SENTENCE MUST BE
            VACATED AND THE CASE REMANDED FOR
            RESENTENCING.

      In addition, in a pro se supplemental brief that has no point headings,

defendant argues there was insufficient evidence that he did not have permission

to enter his sister's home to visit his mother. He also argues: he did not receive

discovery; the prosecutor withheld exculpatory evidence; the attorney who

represented him before trial did not seek discovery of a police report containing

exculpatory evidence; his attorney did not call as a witness the police officer

who wrote the report containing the exculpatory evidence; and his original

attorney was replaced by an inexperienced attorney who did not seek to obtain

important discovery and exculpatory evidence.

                                                                          A-0373-17T3
                                        3
      Finding merit in defendant's first point, we remand for correction of the

Judgment of Conviction to reflect that on the first count defendant was convicted

on the offense charged in the indictment – third-degree burglary – and for

resentencing on that count. Finding no merit in the remaining points, we reject

defendant's request for a new trial.         Concluding that the only possibly

meritorious points in defendant's pro se brief are, in essence, allegations that the

attorneys who represented him did so ineffectively, we decline to consider them;

they are better suited for disposition in the context of a petition for post -

conviction relief.

                                        I.
                                        A.

      A Camden County grand jury charged defendant in a four-count

indictment with the following offenses: second-degree burglary, N.J.S.A.

2C:18-2(a)(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(7) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(d) (count three); and third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(d) (count four).

      The Indictment's first count provided in pertinent part:

            The Grand Jurors of the State of New Jersey, for the
            County of Camden, upon their oaths present that, on or
            about the 10th day of September, 2015, in the Borough

                                                                            A-0373-17T3
                                         4
            of Somerdale, County of Camden, aforesaid, and within
            the jurisdiction of this Court,

                              RODNEY F BATES

            did unlawfully enter the structure of [his niece] at [her
            address] with the purpose to commit an offense therein;

            contrary to the provisions of N.J.S. 2C:18-2a(1), and
            against the peace of this State, the Government and
            dignity of the same.

            2C:18-2a(1) Burglary – Second Degree [1]

      Defendant's jury trial took place in March 2017.           On the morning

testimony was to begin, after giving the impaneled jury preliminary instructions

but before the attorneys gave opening statements, the court heard defendant's

motion to dismiss the indictment's first count. The court listened to a recording

of the grand jury presentment and then heard the attorneys' arguments. During

argument, after implicitly acknowledging that count one as drafted did not state

the elements of a second-degree offense, the prosecutor "move[d] to amend the

body to support or reflect exactly what was said in the grand jury proceedings."



1
   Contrary to the suggestion flowing from the "Second Degree" following the
statutory reference, N.J.S.A. 2C:18-2(a)(1) is not a second-degree crime; it is a
third-degree crime. N.J.S.A. 2C:18-2(b) (providing that with two exceptions
involving the infliction or attempt to inflict bodily injury, or the display of what
appear to be explosives or a deadly weapon, "burglary is a crime of the third
degree").
                                                                            A-0373-17T3
                                         5
      The court granted the prosecutor's motion. In granting the prosecutor's

oral motion to amend the indictment, the court noted:

            In the body of the indictment on count one it does not
            have the language that bumps it to a second-degree,
            which would mean that in the course of committing the
            offense the actor - - and I'm citing from [N.J.S.A.
            2C:18-2(b)(1) and (2)] - - "purposely, knowingly or
            recklessly inflicts, attempts to inflict, or threatens to
            inflict bodily injury on anyone or is armed with or
            displays what appears to be explosives or a deadly
            weapon."

      The court nonetheless determined the testimony the State elicited from a

police officer before the grand jury "fits the definition, at least a prima facie

definition of a prima facie case, of second-degree." The court reiterated the

officer's testimony "sets forth a prima facie case and enough evidence to

formally charge the defendant with second-degree." In addition, the court noted

that the prosecutor, when asking the grand jury "to rule on or make a vote on

what the indictment would be, . . . said 'that's actually a second-degree offense.'"

      The court disposed of three other motions, none of which are at issue on

this appeal. The jury convicted defendant on the indictment's first two counts

and acquitted him of the third and fourth counts. At sentencing, the judge




                                                                            A-0373-17T3
                                         6
merged the third-degree assault into the second-degree burglary and sentenced

defendant to a ten-year prison term subject to NERA. 2

                                      B.

      The parties presented the following proofs at trial. Defendant's elderly

mother lived in Somerdale with her daughter, who was defendant's sister; and

her granddaughter, who was defendant's niece. Defendant's mother had deeded

the home to defendant's sister in July 2004. His sister and niece cared for his

mother. Defendant was not permitted to enter the home unless his sister was

present.

      His sister was not at home on September 10, 2015. She was working a

twelve-hour shift. Defendant's niece was caring for his mother that day.     His

niece testified that she had moved into the Somerdale home to help her mother

care for her grandmother, who had fallen ill. She described defendant as, among

other things, "a little bit of a bully to everybody in the family including [his

mother]."

      Defendant's niece explained that defendant was not permitted to come to

the house unless he first made an appointment. He was allowed to use the


2
   The Judgment of Conviction specifies the statutory offense of third-degree
aggravated assault as 2C:12-1(a)(1), not 2C:12-1(b)(7), the offense charged in
the indictment of which defendant was found guilty.
                                                                        A-0373-17T3
                                       7
detached garage, where he stored some of his belongings. Defendant's niece

also testified that defendant never came to the home when she was alone with

her grandmother, because she felt uncomfortable around him.

      Defendant's niece was up early on September 10, 2015. She was alone

with her grandmother in the home when she heard the trash trucks and realized

she had forgotten to take out the trash. She ran out to take out the trash, and

while doing so, defendant pulled up in her grandmother's Cadillac and began to

ridicule her. He got out of the car and began "gunning" for the door. She

pleaded with him not to go in, saying he was not allowed, her grandmother was

not well, and her grandmother was sleeping.

      According to defendant's niece, defendant entered the home. She ran

behind him and grabbed the door knob. He reached for the slide lock and she

"ripped" open the door and was able to stand in front of the door, her body

between the door and defendant, so that he would not lock her out of the house.

He pushed his body into hers, and hers in turn was propelled against the door

and shattered the glass. Defendant picked up a piece of triangular-shaped glass

and held it near his niece.

      Defendant's niece testified that she and defendant struggled. During the

struggle, he managed to get a fistful of her hair at the top of her head. As the


                                                                        A-0373-17T3
                                       8
struggle continued, defendant's niece fell to the ground and he jumped on top of

her and pinned her down with his hands. She cried and screamed, and she

eventually stood up. She was able to re-enter the house, grab her cell phone,

and call 9-1-1. Defendant went to her grandmother's room.

      Defendant's niece heard defendant talking to her grandmother and

attempting to blame her for the broken door. He came out while she was

speaking to the dispatcher, grabbed her by the neck, pinned her against the wall,

and punched her in the face twice. Her grandmother came out with her walker.

Defendant's niece called 9-1-1 again, having been disconnected during the first

call. Defendant left.

      Recordings of the two 9-1-1 telephone calls where played for the jury. In

the first call, defendant's niece told the dispatcher her uncle had broken the glass

in a door and broken into the house. "My uncle just broke into the house. We

were just wrestling outside. He broke the glass. . . . he's coming after me right

now. He just punched me." When defendant's niece called 9-1-1 the second

time, she said her uncle "had me pinned under the chair pounding me in the

face." In the second call, in response to the dispatcher's question, "what's going

on there," defendant's niece responded: "I have an abusive, crazy uncle who

stops by from time to time.       Today he decided to break the glass on my


                                                                            A-0373-17T3
                                         9
grandmother's porch, break in and then proceeded to punch me in the face and

pull my hair."

      Defendant's niece explained during her testimony that when defendant

arrived at the house, the door was unlocked because she was taking out the trash.

She normally locked the doors. She locked the doors to keep defendant out,

because when he came in, he would refuse to leave or display a "bully kind of

mentality." Defendant's niece also explained that defendant had locked her out

of the house on previous occasions.

      Clumps of defendant's niece's hair had fallen out after he pulled it. The

State presented photographic evidence of her hair as well as her two black eyes.

The State also presented photographic evidence of the area where the struggle

occurred, including a photograph of the shattered door.

      Defendant testified to a different version of the events. He said he was

unaware of any understanding among his mother, sister, and niece that he was

not allowed to enter the house unless his sister was present. According to him,

the opposite was true; his mother wanted him there. He had no idea his mother

had deeded the home to his sister until he saw the deed a couple of days before

trial when he and his attorney were reviewing discovery. Neither his mother nor




                                                                         A-0373-17T3
                                      10
his sister had ever told him that title of the house had been transferred to his

sister.

          Turning to the events of September 10, 2015, defendant said he drove to

his mother's home that morning to visit her. He drove into the driveway, passed

his niece, who was taking out the trash, and walked toward the door. He thought

he heard his niece say something but he told her did not have time and continued

to walk toward the door.

          Defendant said that as he began to open the door to enter the home to see

his mother, his niece came from behind him, slipped under his arm, and got

between him and the door. According to defendant, her hair got caught in the

latch and lock and she thought he was pulling it. She stomped on his foot three

times and broke his toe. In pain, he lifted his foot, and she pushed him to the

ground.

          As he lay on the ground he watched his niece rip her hair out from the

lock, screaming "ouch" as she did so. She then came at defendant with her foot

and tried to kick him again.

          Defendant had to hop into the house to see his mother, because his foot

was severely injured. He told his mother his niece was starting something and

asked his mother to come out and intercede. His mother came out. It appeared


                                                                           A-0373-17T3
                                         11
to him that his niece was getting a knife out of a kitchen drawer, so he told his

mother he was leaving and he left, wanting to get away from his attacker.

      Defendant repeated that he had gone to the home for no other reason than

to visit his mother. He explained that he lives in Florida during the winter, and

when summer is over, he returns there. He knew his mother's health was failing

and wanted to visit her before returning to Florida for the winter.

      During cross-examination defendant was confronted with photographs of

his niece's injuries. He denied inflicting them. He said the photographs of her

face looked "like all smeared makeup." As to her other injuries, he testified: "I

feel as though she inflicted them upon herself by attacking me from behind and

putting her head in a position where her hair was caught and the way she ripped

her hair out." Defendant insisted he was "not responsible for her actions. She

was the aggressor, not [him]." He claimed he never touched her.

      The jury rejected defendant's version of the events and convicted him of

burglary and aggravated assault.

                                        II.
                                        A.

      In his first point, defendant argues that by permitting the State to amend

the indictment immediately before the parties presented their opening statements

to the jury, the trial court deprived him of his constitutional right to indictment

                                                                           A-0373-17T3
                                       12
by grand jury. Defendant adds that the last-minute amendment deprived him of

his right to fair notice of the charges against him and resulted in his conviction

on a charge for which he had not been indicted.

      The State responds that the first count's deficiency is nothing more than a

clerical error. The State emphasizes defendant could not have been prejudiced

because during the pretrial conferences and the pretrial plea negotiations

defendant heard the trial court and the prosecutor discuss the charges against

him, including the crime of second-degree burglary. The State also points out

that in all of the plea negotiations, including those for which there were on-the-

record discussions, defendant was informed of the penalty for second-degree

burglary.   Consequently, defendant could not have been prejudiced by the

clerical error in the indictment.

                                         B.

      The New Jersey Constitution guarantees that

            [n]o person shall be held to answer for a criminal
            offense, unless on the presentment or indictment of a
            grand jury, except in cases of impeachment, or in cases
            now prosecuted without indictment, or arising in the
            army or navy or in the militia, when in actual service in
            time of war or public danger.

            [N.J. Const. art. I, ¶ 8.]



                                                                          A-0373-17T3
                                         13
      "That constitutional provision requires that the State present to the grand

jury proof to support every element of the offense before the return of an

indictment and that every element must be alleged in the indictment." State v.

Fortin, 178 N.J. 540, 633 (2004) (citing State v. Hogan, 144 N.J. 216, 227

(1996)). Moreover, "under the Due Process Clause of the Fifth Amendment and

the notice and jury trial guarantees of the Sixth Amendment, any fact (other than

prior conviction) that increases the maximum penalty for a crime must be

charged in an indictment, submitted to a jury, and proven beyond a reasonable

doubt." Apprendi v. New Jersey, 530 U.S. 466, 476 (2000) (quoting Jones v.

United States, 526 U.S. 227, 243, n.6 (1999).

      Our Supreme Court has explained that a defendant's right to a grand jury

indictment is satisfied if the indictment informs the defendant of the offense

charged so that he can adequately prepare his defense, "and is 'sufficiently

specific' both 'to enable the defendant to avoid a subsequent prosecution for the

same offense' and 'to preclude the substitution by a trial jury of an offense which

the grand jury did not in fact consider or charge.'" State v. Dorn, 233 N.J. 81,

93 (2018) (quoting State v. LeFurge, 101 N.J. 404, 415 (1986)). The Supreme

Court has further explained that "[t]o meet those criteria, an 'indictment must

allege all the essential facts of the crime.'" Ibid. (quoting LeFurge, 101 N.J. at


                                                                           A-0373-17T3
                                       14
418). "Thus, 'the State must present proof of every element of an offense to the

grand jury and specify those elements in the indictment.'" Id. at 93-94 (quoting

Fortin, 178 N.J. at 633).

      A court "may amend the indictment . . . to correct an error in form or the

description of the crime intended to be charged or to charge a lesser included

offense provided that the amendment does not charge another or different

offense from that alleged and the defendant will not be prejudiced thereb y in his

or her defense." R. 3:7-4. The Supreme Court has cautioned that "[a]n error

relating to the substance or 'essence' of an offense cannot be amended by

operation of that rule." Dorn, 233 N.J. at 94 (citing State v. Middleton, 299 N.J.

Super. 22, 34 (App. Div. 1997)). Thus, "a 'trial court may not amend an

indictment to charge a more serious offense,' State v. Orlando, 269 N.J. Super.

116, 138 (App. Div. 1993), because the amendment would subject the defendant

to a charge of 'an entirely different character and magnitude,' thereby depriving

him of the opportunity to mount a meaningful defense, cf. State v. Koch, 161

N.J. Super. 63, 65-67 (App. Div. 1978)." Id. at 96.

                                       C.

      These principles should have precluded the amendment of the indictment.

The amendment did not merely "correct an error in form or the description of


                                                                          A-0373-17T3
                                       15
the crime intended to be charged," but rather "charge[d] another or different

offense from that alleged." R. 3:7-4. The amendment related to the substance

or essence of the offense, and therefore was precluded by the rule. Dorn, 233

N.J. at 94.

      The State argues that because the evidence presented to the grand jury

established second-degree burglary, because the grand jury was asked to

consider returning an indictment for second-degree burglary, and because the

plea negotiations during many pretrial proceedings centered around a plea to

second-degree burglary and included a judge explaining to defendant the

maximum exposure he would face for that crime if he proceeded to trial, th ere

was no prejudice to defendant. We disagree that such circumstances, even if

true, can substitute for a proper grand jury indictment.

      We have previously concluded, in the context of a robbery indictment,

that the indictment was inadequate, notwithstanding that the presentation to the

grand jury supported it:

              In the absence of the inclusion of either facts or
              statutory language constituting a first-degree robbery,
              there can be no determination by a reviewing court as
              to whether or not the grand jury, although hearing
              sufficient evidence to constitute a first degree robbery,
              accepted or rejected such evidence. The indictment in
              question does not demonstrate a grand jury


                                                                          A-0373-17T3
                                        16
            determination that it was satisfied that a first-degree
            crime had occurred.

            [State v. Catlow, 206 N.J. Super. 186, 195 (App. Div.
            1985).]

      Prejudice is certainly a consideration.      Rule 3:7-4 provides that an

indictment may be amended "to correct an error in form or the description of the

crime intended to be charged . . . provided that the amendment does not charge

another or different offense from that alleged and the defendant will not be

prejudiced thereby in his or her defense." The terms of this rule are conjunctive,

not disjunctive; the amendment must not charge another or different offense,

and must not prejudice the defendant. Thus, if the indictment charges a different

offense – as is the case here – it may not be amended under the rule, even in the

absence of prejudice.

      We thus reverse the conviction for second-degree burglary. Because the

trial court's charge to the jury clearly encompassed the lesser-included offense

of third-degree burglary, we remand this matter to the trial court to re-sentence

defendant and to amend the Judgment of Conviction accordingly.

                                       III.

      In the second argument in his first brief, defendant contends the jury

instruction on burglary left open the possibility of a non-unanimous verdict and


                                                                          A-0373-17T3
                                       17
was not sufficiently tailored to the facts of the case. Noting the State's theory

was that he "entered the home with the intent to commit the offense of

harassment," defendant asserts the court's charge on burglary was confusing and

"created a risk of a non-unanimous verdict because it presented the jury with

two different potential victims of the alleged harassment and three different

theories of harassment without telling the jury it had to unanimously agree on

both the victim and the crime."

      Defendant did not object to the trial court's instructions to the jury on

burglary. We find the argument he raises for the first time on appeal to be

without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

      We reach the same conclusion as to defendant's third argument: the trial

court's failure to redact the niece's reference to defendant as "an abusive , crazy

uncle who stops by from time to time" requires a new trial. Defendant's niece

testified, without objection, that she kept the doors locked in her mother's home

specifically to keep defendant out, because, among other things, of his bullying

tactics. The niece's testimony about why she kept the doors locked, as well as

her testimony describing what defendant did when he assaulted her, render

relatively innocuous – harmless error in legal terminology, R. 2:10-2 – the




                                                                           A-0373-17T3
                                       18
comments she made to the dispatcher while in a state of emotional turmoil. This

argument warrants no further discussion. R. 2:11-3(e)(2).

                                      IV.

      In his pro se brief, defendant raises numerous instances in which he claims

that both the first attorney who represented him and the attorney who

represented him at trial were ineffective. We generally decline to consider

ineffective-assistance-of-counsel claims on direct appeal, "because such claims

involve allegations and evidence that lie outside the trial record."       State v.

Preciose, 129 N.J. 451, 460 (1992). Defendant's allegations concerning the

attorneys who represented him are based on numerous assertions in his pro se

brief for which there is no support in the record. Accordingly, we decline to

hear them without prejudice to defendant's right to file a petition for post-

conviction relief.

      We have considered defendant's remaining arguments and find them to be

without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

      Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.




                                                                           A-0373-17T3
                                      19
