                        NOT FOR PUBLICATION WITHOUT THE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-5065-13T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CARLTON L. CLARK,

        Defendant-Appellant.

_____________________________________________________



              Argued May 11, 2016 – Decided June 26, 2017

              Before Judges Fuentes, Koblitz and Kennedy.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 13-
              05-1059.

              Tamar Yael Lerer, Assistant Deputy Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Ms. Lerer of counsel and on the brief).

              Frank J. Ducoat, Special Deputy Attorney
              General/Acting Assistant Prosecutor argued
              the cause for the respondent (Carolyn A.
              Murray, Acting Essex County Prosecutor,
              attorney; Mr. Ducoat of counsel and on the
              brief).
PER CURIAM

      Following a jury trial, defendant was found guilty of official

misconduct, N.J.S.A. 2C:30-2(a) (count one), and second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two).           He was

thereafter sentenced to five years incarceration, subject to a

five-year period of parole ineligibility, pursuant to N.J.S.A.

2C:43-6.5 on count one, and to five years with an eighty-five

percent period of parole ineligibility and three years of post-

release supervision, pursuant to N.J.S.A. 2C:43-7.2 on count two.

The   sentences   were   to   run   concurrent.   He   now   appeals   his

conviction and argues as follows:

           POINT I

           THE FATALLY FLAWED JURY INSTRUCTIONS IN THIS
           CASE DEPRIVED THE DEFENDANT OF DUE PROCESS AND
           HIS RIGHT TO A FAIR TRIAL AND NECESSITATE
           REVERSAL OF HIS CONVICTIONS.      (NOT RAISED
           BELOW)

           A.   The Trial Court's Instruction On The Use
           of Force, Which Was Legally Incorrect In
           Regard To Both Charges And Eliminated The
           State's Burden To Prove The Defendant's Guilt
           On Each Element Of Each Charge, Necessitates
           The Reversal Of The Defendant's Convictions.

                  i.   Introduction

                  ii.   The Trial Court Misinstructed The
                  Jury, Misstating The Law And Alleviating
                  The State Of Its Burden Of Proof.




                                      2                           A-5065-13T1
          B. The Trial Court's Failure To Instruct The
          Jury On Self-Defense Necessitates Reversal Of
          The Defendant's Convictions.

          POINT II

          THE TRIAL COURT'S ERRONEOUS RULING PROHIBITING
          PROFFERED TESTIMONY BY THE DEFENDANT'S EXPERT
          NECESSITATES THE REVERSAL OF THE DEFENDANT'S
          CONVICTIONS.

          POINT III

          THE TRIAL COURT'S INAPPROPRIATE DENIAL OF THE
          DEFENDANT'S KNOWING AND VOLUNTARY WAIVER OF
          HIS RIGHT TO A JURY TRIAL NECESSITATES THE
          REVERSAL OF HIS CONVICTIONS.

          POINT IV

          DEFENDANT'S   CONVICTIONS    FOR   AGGRAVATED
          ASSAULT AND OFFICIAL MISCONDUCT SHOULD MERGE.

          POINT V

          THE DEFENDANT IS ENTITLED TO THREE ADDITIONAL
          DAYS OF JAIL CREDIT.

We have considered these arguments in light of the record and the

law, and we affirm. We do, however, remand to correct the judgment

of conviction, as we explain hereinafter.

                                 I.

     We begin with a brief recitation of the facts established at

trial.

     On August 26, 2011, after being reprimanded by defendant, a

corrections officer at the Essex County Correctional Facility, for



                                3                          A-5065-13T1
cursing in the medical unit, the victim, an inmate, was instructed

by defendant to return to her housing pod for "lock in." Defendant

advised the victim she would be returned to her pod and her

medication would be brought to her.          During the walk back to her

pod,     the    victim    and   defendant    exchanged    obscenities     and

vulgarities,      until   finally   defendant   grabbed   the   victim   from

behind by her shoulder outside of the victim's housing unit.

       The victim testified that when defendant grabbed her arm, she

swung it to get him off; however, she did not intend to hit

defendant.      Then, defendant began punching the victim repeatedly

in the face with a closed fist.           At that point, she attempted to

defend herself by delivering counter-punches, before then trying

to move away.      Initially, she remained standing until she was hit

"with great force," causing her to fall and eventually "black[]

out."     Despite other officers trying to restrain defendant, he

continued to strike the victim while she was on the ground.

Defendant also dragged the victim by her hair into the "sally

port."

       The victim testified that the next thing she remembered she

was being picked up and pressed against the wall by another

officer.       She was then handcuffed and taken back to the medical

unit.     As a result of the altercation, the victim suffered a



                                      4                              A-5065-13T1
fractured eye, a "busted" lip, a chipped tooth, and some of her

hair had been pulled out.   Later, upon explaining the incident to

another officer, the victim was transported to East Orange General

Hospital, where she stayed for one week.   Photos of the victim's

injuries were entered into evidence, and a videotape depicting the

incident was also played for the jury.

     Defendant testified that when the inmate resisted lock in,

he attempted to place her in an "escort hold," which involves

"grab[bing] either the left or right shoulder and then [...]

grab[bing] [the] accompany[ing] arm [...] – it could be a wrist,

it could be a forearm, elbow." Defendant testified that the victim

resisted when he turned her towards the door, and based on his

training, he believed a punch from the inmate was imminent.

Defendant testified that he anticipated being hit with a fist, and

he explained that he blocked a strike, before moving forward to

restrain the inmate.    Defendant testified that he blocked two

other attempts to punch him and concluded he needed to employ

physical force to avoid injury.      He added that he continued

striking the inmate after he wrestled her to the ground because

she continued to resist.

     Officer Allen, a corrections officer working in the female

pod at the time of the incident, essentially corroborated the



                                 5                         A-5065-13T1
testimony of the inmate, and explained that after the inmate tried

to pull away from the defendant,           "[defendant] started to swing."

Officer   Allen    further   corroborated        the     victim's    testimony     by

explaining that the victim tried to get away from defendant's

punches before eventually falling to the ground.                  There, defendant

continued hitting the victim despite her attempts to cover her

face.

     Another      corrections    officer    in     the    female     pod,   Officer

Hernandez,   testified    that    prior    to    the     physical    altercation,

defendant was demanding that Officers Hernandez and Allen lock the

victim in, which was contrary to normal protocol.                   Officer Allen

and Officer Hernandez also testified that during the incident,

they both attempted to intervene.           However, defendant pushed them

away and continued punching the victim.

     Prior to trial, Judge Peter V. Ryan denied defendant's motion

for a bench trial, and ruled that defendant's proposed expert, Dr.

Richard Celeste, could not testify about the reasonableness of the

force used by defendant in the incident.                   However, Judge Ryan

ordered that following a N.J.R.E. 104 hearing, defendant's expert

could   potentially     testify    about     the       training     and   education

defendant received regarding the use of force.




                                      6                                     A-5065-13T1
                                     II.

      We first consider defendant's two arguments regarding the

jury instructions, including the trial judge's alleged improper

instructions on the use of force and his decision not to provide

a sua sponte charge for self-defense. Next, we consider the ruling

denying defendant's application to call an expert witness on the

reasonableness of defendant's force.          We then briefly address

defendant's argument that the trial judge improperly denied his

waiver of a jury trial.     Finally, we address defendant's remaining

two   points,   including   his   argument   that   the   convictions   for

official misconduct and assault should merge and that he is

entitled to three additional days of jail credit.

         A. Use of Force Jury Instruction

      Defendant argues for the first time on appeal that the trial

judge's jury instructions on the use of force deprived him of a

fair trial.     Specifically, defendant contends that the trial judge

gave improper instructions that reduced the State's burden of

proof.   The relevant portion of the jury instruction is reproduced

below:

           The State contends the defendant Carlton
           Clark's use of force was not for a legitimate
           purpose, and defendant's use of force was not
           in accordance with the Attorney General
           Guidelines and the Essex County Department of
           Corrections Policy regarding the use of force.


                                     7                             A-5065-13T1
            If you find the State has failed to prove
            beyond a reasonable doubt the force was not
            in accordance with the Attorney General
            Guidelines and the Essex County Department of
            Corrections Policy regarding the use of force,
            you must find the defendant Officer Carlton
            Clark not guilty.

            If, however, you find the State has proven
            beyond a reasonable doubt the use of force by
            defendant Carlton Clark was not in accordance
            with the Attorney General Guidelines and the
            Essex County Department of Corrections Policy
            regarding the use of force, you must find the
            defendant Carlton Clark guilty.

Defendant contends that this instruction directed the jury to

convict defendant of both counts if the State established that the

use of force was unauthorized.        Defendant avers that the later

instruction on the elements of each offense does not mitigate the

error, and concludes that this error warrants reversal.

     Defendant concedes that no objection was made to the jury

instruction, and therefore we review this argument under the plain

error standard, reversing only if such an error was clearly capable

of producing an unjust result.    R. 2:10-2.   The Supreme Court has

said that

            [i]n the context of a jury charge, plain error
            requires     demonstration     of     "[l]egal
            impropriety in the charge 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



                                  8                          A-5065-13T1
           a clear capacity to bring about an unjust
           result."

           [State v. Burns, 192 N.J. 312, 341 (2007)
           (second alteration in original) (quoting State
           v. Jordan, 147 N.J. 409, 422 (1997)).]

In addition, we examine the argument here in light of "the totality

of the entire charge, not in isolation."    State v. Chapland, 187

N.J. 275, 289 (2006).   "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. McKinney, 223 N.J. 475, 496 (2015) (quoting State

v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997), 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.    (quoting

Jackmon, supra, 305 N.J. Super. at 299).

     While an erroneous jury charge may be a "'poor candidate[]

for rehabilitation' under the plain error theory," Jordan, supra,

147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)),

we nonetheless consider the effect of any error in light "of the

overall strength of the State's case."   Chapland, supra, 187 N.J.


                                 9                           A-5065-13T1
at 289.    In addition, the failure to object signifies that "in the

context of the trial[,] the [alleged] error was actually of no

moment."    State v. Ingram, 196 N.J. 23, 42 (2008) (quoting State

v. Nelson, 173 N.J. 417, 471 (2002)).

     Here, following the use of force instruction, the trial judge

provided the proper instructions on the elements necessary for a

charge of official misconduct:

            In order to be convicted under [N.J.S.A.
            2C:30-2(a)], (1) the defendant had to be a
            "public servant" at all relevant times, (2)
            who committed "an act relating to his office"
            which constituted "an unauthorized exercise of
            his official functions," knowing that it was
            unauthorized or committed in an unauthorized
            manner, and (3) his purpose must have been "to
            obtain a benefit for himself or another" or
            "to injure or deprive another of a benefit."

            [State v. Quezada, 402 N.J. Super. 277, 283
            (App. Div. 2008); see N.J.S.A. 2C:30-2(a).]

The trial judge also went on to properly provide the elements

necessary for a conviction of aggravated assault.      See N.J.S.A.

2C:12-1(b)(1).     In giving these instructions, the trial judge

properly emphasized that it was the State's burden to prove each

element of each offense "beyond a reasonable doubt."

     In his initial instructions, the trial judge informed the

jury that it must find defendant not guilty if the State failed

to overcome its burden of proof.      The jury charge consistently



                                 10                          A-5065-13T1
referenced that the burden of proof remained with the State on

each charge, and accurately described the burden to establish each

element of the offenses charged beyond reasonable doubt. Moreover,

the judge was specific in instructing the jury that the offenses

charged were separate and that defendant was entitled to have each

count considered separately.

       Accordingly, we are satisfied that there was no error in the

instructions given by the judge and, further, that substantial

evidence supported the jury's verdict.          The parties stipulated

that defendant was a corrections officer, and the serious injuries

of the victim were established with the stipulation of her broken

orbital bone.      The jury viewed the videotape of the incident

multiple times, and had the ability to weigh the credibility of

the inmate and the defendant, and to assess the testimony of

defendant's fellow corrections officers who observed the incident

firsthand.   Officer Allen, for example, testified that cursing at

an officer is considered a minor violation that does not warrant

physical force.     Officer Hernandez provided similar testimony.

Both   officers   also   recalled   observing   defendant   striking   the

victim in the head repeatedly.

       Based upon the forgoing, we find no reversible error in the

trial judge's jury instructions.



                                    11                            A-5065-13T1
       B. Self-Defense Jury Instruction

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

trial judge was required to sua sponte provide the jury with a

self-defense instruction.      Defendant contends that the theory of

using force in self-defense was central to his case. Specifically,

defendant argues that there was ample evidence in the record to

support a self-defense instruction, and that providing such an

instruction   would   have   presented     a   complete   defense   to   both

charges.   Such a failure, he argues, constitutes reversible error.

     Again,   because   defendant    did   not   request   a   self-defense

charge, our review is based upon the plain error standard.               State

v. O'Carroll, 385 N.J. Super. 211, 235 (App. Div.), certif. denied,

188 N.J. 489 (2006).

     "A trial judge must sua sponte charge self-defense in the

absence of a request . . . 'if there exists evidence in either the

State's or the defendant's case sufficient to provide a rational

basis for its applicability.'"       State v. Galicia, 210 N.J. 364,

390 (2012) (quoting O'Carroll, supra, 385 N.J. Super. at 236

(internal quotations omitted)).      The required "inquiry is whether

the evidence presented to the trial court clearly indicates a

foundation for the justification of self-defense."             Id. at 391.

"[I]f any evidence raising the issue of self-defense is admitted



                                    12                               A-5065-13T1
in either the State's or the defendant's case, then the jury must

be   instructed   that   the   State    is   required    to   prove   beyond   a

reasonable doubt that the self-defense claim does not accord with

the facts."   State v. Burks, 208 N.J. Super. 595, 604 (App. Div.

1986).

      Pursuant to statute, "the use of force upon or toward another

person is justifiable when the actor reasonably believes that such

force is immediately necessary for the purpose of protecting

himself against the use of unlawful force by such other person on

the present occasion."         N.J.S.A. 2C:3-4(a).        However, a person

"who provokes or initiates an assault cannot escape criminal

liability by invoking self-defense as a defense to a prosecution

arising from the injury done to another."               State v. Rivers, 252

N.J. Super. 142, 149 (App. Div. 1991). The justification of "self-

defense is . . . unavailable if a lesser degree of force could

have been used to respond to an attack."          Galicia, supra, 210 N.J.

at 390.

      Here, the testimony at trial, along with the video of the

altercation presented to the jury, supports the conclusion that

defendant was the initial aggressor.           Following their exchange of

words, defendant aggressively grabbed the victim from behind,

endeavoring to put her in lockup.            The victim then swung her arm



                                       13                              A-5065-13T1
in an attempt to free herself, and defendant began repeatedly

striking her in the head with a closed fist.    As such, if the jury

determined that defendant was the initial aggressor, no self-

defense charge was necessary.   See Rivers, supra, 252 N.J. Super.

at 149.      Further, the video shows defendant throwing several

punches to the victim while she was defenseless on the ground.

These facts clearly demonstrate that the level of force used was

excessive, as further corroborated by the testimony of Officer

Allen and Officer Hernandez.    Galicia, supra, 210 N.J. at 390.

                                III.

     The issue here is not whether the trial judge precluded

defendant's expert testimony, as defendant argues, but whether the

trial judge properly limited the scope of the proposed expert's

testimony.     The trial judge never prohibited the defense from

calling any expert witness, but rather held that neither party

could call an expert witness to testify that the force defendant

actually used was reasonable or unreasonable.

     Prior to trial, Judge Ryan, upon motion from the State,

considered whether the defense could call the Director of the

Somerset County Police Academy, Dr. Richard Celeste, as an expert

witness concerning "police practice and procedure."    According to

defense counsel, Dr. Celeste would testify that, "under the facts



                                14                           A-5065-13T1
and circumstances, based upon his training and experience and the

experience    that   [defendant]   has   received[,]    that   the   actions

undertaken, in his opinion as an expert, are justified under the

facts and circumstances of this particular instance."            Following

a hearing, Judge Ryan determined that Dr. Celeste could not testify

to any facts or opinions concerning the instant matter, including,

but not limited to that "defendant acted in conformance with, or

deviated from, the use of force guidelines, rules, regulations,

law, etc."    However, Judge Ryan also ordered that, subject to a

N.J.R.E. 104 hearing, Dr. Celeste may be permitted to testify

"concerning the training and education of [defendant]."

     Judge Robert Gardner conducted the N.J.R.E. 104 hearing,

wherein he found that Dr. Celeste's proffered testimony was within

the parameters of Judge Ryan's prior order.        At trial, the State

again moved to preclude Dr. Celeste from testifying based upon

"issues regarding discovery and also information concerning 104

hearing[.]"     Judge Gardner denied the State's request, ruling

consistently with the court's prior determinations.              Following

completion of the State's case however, the defense called several

witnesses, but not Dr. Celeste.

     A trial court's decision permitting or precluding expert

testimony is entitled to deference on appeal.          Townsend v. Pierre,



                                   15                                A-5065-13T1
221 N.J. 36, 52 (2015); see also State v. Berry, 140 N.J. 280, 293

(1995) ("[T]he necessity for and admissibility of expert testimony

are   matters     to    be   determined        within   the   sound    exercise     of

discretion by the trial court.").

       Expert testimony is admissible where the subject matter at

issue may not be sufficiently familiar to the average juror or

where it would "assist the [jurors] to understand the evidence or

to determine a fact in issue[.]"                Berry, supra, 140 N.J. at 289

(quoting N.J.R.E. 702).            The requirement that expert testimony

"assist the [jurors]" has been interpreted broadly to encompass

testimony     helpful        to   their    understanding       of     the   evidence

presented.      Id. at 290-91.       The admissibility of expert testimony

does not depend on "'whether the subject matter is common or

uncommon or whether many persons or few have knowledge of the

matter[.]'"       Id. at 291 (quoting Rempfer v. Deerfield Packing

Corp., 4 N.J. 135, 141-42 (1950)).                Expert opinion testimony is

permissible even where it embraces the ultimate issue to be

determined by the jury, so long as the testimony does not express

an    "'opinion    of    defendant's      guilt     but   simply      characterizes

defendant's conduct based on the facts and evidence in light of

[the expert's] specialized knowledge[.]'"                 State v. Summers, 176

N.J. 306, 314 (2003) (quoting State v. Odom, 116 N.J. 65, 79



                                          16                                 A-5065-13T1
(1989)); N.J.R.E. 704.    The admissibility of such testimony rests

in the sound discretion of the trial court.          Summers, supra, 176

N.J. at 312.

     Here, the reasonableness of defendant's use of force was the

determinative question for the jury.            Thus, the trial judge

properly found that the parties' experts may testify as to the

relevant guidelines regarding the use of force, along with the

educational training that defendant received in that area.                 In

fact, Raymond Hoffman, an assistant prosecutor and police legal

advisor in Essex County, testified as a fact witness for the State.

He described the training and skills defendant learned as a student

of his at the Essex County Police Academy; however, the trial

court ruled that Hoffman could not testify as an expert witness.

The court explained, consistent with Judge Ryan's ruling, that

Hoffman could not testify as an expert in the State's case-in-

chief, but could possibly do so in rebuttal, depending on whether

the defense puts "a witness on at all," and, if so, what he

testifies to.   Therefore, the record is clear that the trial judge

did not "prohibit" defendant from calling its expert witness.

     Rather,    the   parties   were    instructed   that   their    expert

witnesses could not provide an opinion about whether defendant

acted in conformance with or deviated from those guidelines or



                                   17                               A-5065-13T1
training.    Such an opinion would go not only to the sole issue in

this case, but also to determining the guilt or innocence of

defendant.      Therefore,     in    agreeing       with   the    trial   court's

determination     that     any      expert       testimony       regarding     the

reasonableness of defendant's conduct would usurp the role of the

jury, we find no abuse of discretion.               See State v. McLean, 205

N.J. 438, 453 (2011).

                                           IV.

     We next consider defendant's argument that the trial court

improperly denied his knowing and voluntary waiver of a jury trial.

Specifically, defendant argues that the trial court failed to

articulate the reasons for his denial pursuant to State v. Dunne,

124 N.J. 303 (1991).

     In a letter dated, March 14, 2013, defendant sought to waive

his right to a jury trial pursuant to Rule 1:8-1.                 He signed the

document indicating that the waiver was made freely, knowingly and

voluntarily.    The State objected to defendant's waiver request.

     On May 13, 2013, a hearing was held before Judge Ryan on

defendant's    motion    for   a   bench    trial    and   defendant's     motion

regarding certain expert testimony to be utilized at trial.                    The

motion judge denied defendant's motion for a bench trial, stating,




                                      18                                  A-5065-13T1
"I think it [is] something that should be decided by a jury of

your peers, not by a guy in black robes."

     "[T]rial by jury is fundamental to the American system of

criminal justice."    Dunne, supra, 124 N.J. at 316.           And, while the

right to trial by jury may be waived by a defendant, our Supreme

Court has recognized that it remains "'normal and, with occasional

exceptions, the preferable mode of disposing of issues of fact in

criminal   cases   above   the   grade    of   petty    offenses.'"      Ibid.

(quoting Patton v. United States, 281 U.S. 276, 312, 50 S. Ct.

253, 263, 74 L. Ed. 854, 870 (1930)); see also R. 1:8-1(a).

Accordingly,   the   Dunne   Court    determined       that   in   considering

whether to give effect to a defendant's waiver of trial by jury,

a judge should:

           (1)   determine   whether  a   defendant   has
           voluntarily,    knowingly,   and   competently
           waived the constitutional right to jury trial
           with advice of counsel;

           (2) determine whether the waiver is tendered
           in good faith or as a stratagem to procure an
           otherwise impermissible advantage; and

           (3) determine, with an accompanying statement
           of reasons, whether, considering all relevant
           factors, . . . it should grant or deny the
           defendant's request in the circumstances of
           the case.

           [Id. at 317.]




                                     19                                A-5065-13T1
    The Court described the factors referred to in the third

element in the following way:

         Although there is no "judicial calculus that
         unerringly resolves each case," State v.
         R.G.D., 108 N.J. 1, 12 (1987), the "evidential
         axis" that we described in R.G.D. provides a
         useful analogy. At one end of the scale,
         tilting in favor of jury trial, will be the
         gravity of the crime. The higher the degree
         of the crime, the greater the weight given to
         that factor. Other factors that will tip the
         scale will be the position of the State, the
         anticipated duration and complexity of the
         State's presentation of the evidence, the
         amenability of the issues to jury resolution,
         the existence of a highly-charged emotional
         atmosphere [recognizing this may cut both
         ways], the presence of particularly-technical
         matters that are interwoven with fact, and the
         anticipated need for numerous rulings on the
         admissibility or inadmissibility of evidence.

         [Ibid.]

Because the accused does not possess a "constitutional right to

waive a jury trial and insist on a bench trial," id. at 316, the

matter rests with the trial judge's sound discretion.

    Here,   while   Judge   Ryan   did   not   express   in   detail   the

conclusions underlying the third element of Dunne, the Supreme

Court recognized that this statement of reasons merely provides

"structure to the trial court's discretionary judgment and will

soundly guide appellate review."        Id. at 317-18 (citing State v.

Roth, 95 N.J. 334, 363-64 (1984)).       Finding ourselves in the same



                                   20                             A-5065-13T1
position as the trial court, we evaluate the ruling for abuse of

discretion based upon the evidence contained in the record.       Id.

at 312-13.

     In considering the gravity of the charged offenses, as well

as the factual nature of this case, which involved a physical

altercation between a male corrections officer and a female inmate,

we agree that a jury was in a better position to evaluate the

merits of this case.     Additionally, this case was not one that

involved "particularly technical matters" or the "anticipated need

for numerous rulings on the admissibility or inadmissibility of

evidence."     Therefore, we find no reversible error in the trial

court's decision to deny defendant's waiver request.

                                   V.

     In defendant's remaining points, he argues, and the State

concedes, that his convictions for official misconduct and assault

should merge and that he is entitled to three additional days of

jail credit.    We agree and remand for a correction of the judgment

of conviction.

     As for the merging of defendant's two counts, in State v.

Lore, 197 N.J. Super. 277, 283-84 (1984), we concluded that a

defendant's convictions for official misconduct and assault should

merge when "[t]he two offenses occurred at the same time and place



                                 21                          A-5065-13T1
[and] [t]he State relied upon the simple assault to establish the

official misconduct in office."     Ibid.      "Otherwise, defendant will

be punished twice for one offense."          Id. at 284.

     With   respect   to    defendant's      entitlement   to   three   days

additional jail credit, defendant was granted forty-eight days of

credit for time spent in custody prior to sentencing.            R. 3:21-8.

However, the judgment of conviction inaccurately states that he

was only in custody from February 14, 2014, to the date of

sentencing, April 3, 2014.      Defendant's bail was revoked and he

was taken into custody on February 11, 2014.         Therefore, defendant

should have received fifty-one days of jail credit.

     As   modified,   the   judgment    of    conviction   is   accordingly

affirmed, and we remand the matter to the Law Division to correct

the judgment of conviction.

     We do not retain jurisdiction.




                                   22                               A-5065-13T1
