Opinion
DOCKET NO. A-4610-12T4
10-21-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID A. FIGUEROA, Defendant-Appellant.
Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Friedman, of counsel and on the brief). Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; James C. Jones, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-05-0705. Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Friedman, of counsel and on the brief). Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; James C. Jones, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Following a jury trial, defendant David A. Figueroa was convicted of third-degree aggravated assault, N.J.S.A. 2C:12- 1b(1), causing or attempting to cause serious bodily injury ("SBI"); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2), causing or attempting to cause bodily injury with a deadly weapon; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. After merging the two assault counts, the judge imposed a custodial term of six years' imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge imposed concurrent four-year and eighteen-month terms respectively on the two weapons charges.
On the day of sentencing, defendant also pled guilty to a violation of probation ("VOP") that stemmed from his 2008 guilty plea to third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2), and fourth-degree leaving the scene of a motor vehicle accident with serious bodily injury, N.J.S.A. 2C:12-1.1. Defendant was originally sentenced to probation for a period of five years, and 180 hours of community service. We discuss below the sentence imposed by the judge on the VOP.
Before us, defendant raises the following issues:
POINT IIn a supplemental pro se brief, defendant contends:
FIGUEROA WAS DEPRIVED OF A FAIR TRIAL DUE TO THE INTRODUCTION OF HIS SIMILAR PRIOR CONVICTIONS AND CHARACTER EVIDENCE. (Not Raised Below)
A. Trial Counsel Rendered Ineffective Assistance When Questioning Figueroa Regarding His Prior Conviction for Assault by Automobile
B. The State Engaged in Prosecutorial Misconduct by Introducing Figueroa's Prior Conviction for Leaving the Scene of a Motor Vehicle Accident and Using Same to Suggest that He Acted in Conformity Therewith when Leaving the Scene of the Incident in Question
i. The Assistant Prosecutor's Introduction of Figueroa's Conviction for Leaving the Scene of an Accident was Highly Improper
ii. The Prosecutorial Errors Deprived Figueroa of His Right to a Fair Trial
C. The Trial Court Erred in Failing to Strike the Prejudicial Other-Crimes and Character Evidence Sua Sponte
D. The Cumulative Effect of the Errors Committed by Defense Counsel and the State Constitutes Plain Error Warranting Reversal
POINT II
IN THE ALTERNATIVE, IF THIS COURT FINDS THAT THE PROPENSITY EVIDENCE REGARDING FIGUEROA'S PRIOR DEPARTURE FROM A MOTOR VEHICLE ACCIDENT WAS ADMISSIBLE, THE TRIAL COURT ERRED IN FAILING TO PROVIDE THE JURY WITH AN
N.J.R.E. 404(b) LIMITING INSTRUCTION. (Not Raised Below)
POINT III
THE TRIAL JUDGE CHARGED THE JURY WITH A CONTRADICTORY, MANIFESTLY CONFUSING, AND INCOMPLETE FLIGHT INSTRUCTION. (Not Raised Below)
POINT IV
THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE RECORD DOES NOT
SUPPORT THE SENTENCING COURT'S FINDING THAT AGGRAVATING FACTOR ONE APPLIES AND THE SENTENCING COURT ENGAGED IN DOUBLE COUNTING. ALTERNATIVELY, THE TRIAL COURT SHOULD BE REQUIRED TO AMEND THE JUDGMENT[] OF CONVICTION TO REFLECT THE SENTENCES IMPOSED.
A. The Record Does Not Support the Trial Court's Determination that Aggravating Factor One is Applicable
B. The Trial Judge Engaged in Double Counting When Finding that Aggravating Factor Two Applies
C. The Judgment[] of Conviction Do[es] Not Reflect the Sentences Imposed by the Trial Court
POINT IWe have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction and remand the matter solely for the purpose of resentencing so the judge may clarify the sentence she intended to impose and enter amended judgments of conviction ("JOCs").
THE STATE DID NOT PROVIDE ANY EVIDENCE INDICATING THAT VICTIM SUFFERED ANY SERIOUS BODILY INJURY AND THEREFORE DEFENDANT SHOULD NOT HAVE BEEN INDICTED ON A SECOND[-]DEGREE AGGRAVATED ASSAULT W/SBI PURSUANT TO N.J.S.A. 2C:12-1[b](1).
I.
Defendant was a regular patron at a tavern in Hackensack. On November 11, 2011, police responded to the bar on report of an assault. A video surveillance camera recorded much of the incident, and a copy was played for the jury.
The State called several witnesses who were present in the tavern at the time, including the victim, who testified that he went to the tavern with a friend at about 11 p.m. He claimed that as he walked to the bathroom, he was hit in the face by "something"; he did not see what or who hit him. He suffered facial cuts that required more than one hundred stitches and left him with noticeable and sizeable scars. He was also unable to see out of one of his eyes for "four to five months" afterwards.
The victim's friend testified that there was no fight or argument that evening, although she heard defendant ask the victim if he knew him. Both bartenders testified that there was no altercation between the victim and defendant, and that their attention was first drawn to the area near the bathroom when they heard glass shattering. They saw the victim bleeding profusely and defendant running out of the tavern.
The State also called defendant's lifetime friend, who was with him on the night in question. Contrary to the other witnesses, he testified that the victim approached him and defendant as they sat at the bar. The victim said something to defendant, and then told his friend to "tell your man to relax . . . ." Defendant and his friend left the bar because they felt threatened by this conduct, but they soon re-entered. Although he did not see the victim being struck, defendant's friend heard glass shatter and saw defendant quickly leave the bar.
Defendant was the sole defense witness. He testified that he carried a small bottle of rum into the bar in his pocket because he had little money. Defendant conversed with his friend for a while before the victim appeared behind him and asked, "what did you say?" Defendant became frightened as the victim's voice escalated, and, according to defendant, the victim's friend tried to intercede.
Although the situation de-escalated, defendant believed the victim was gang-affiliated. According to defendant, the victim said, "me and my n*****s do big things . . . I'm a beast," and hinted at having a knife, before ultimately walking away. Defendant testified that he immediately left the bar with his friend and discussed the situation outside.
The pair reentered to tell one of the bouncers that there was "a guy with a weapon" in the bar. Defendant claimed that the victim walked past him and raised his arm like he was "going to do something . . . ." Defendant tried to retreat to a corner, but the victim "kept coming towards" him. Defendant struck the victim over the head with the bottle and ran to his grandfather's house, where he had been prior to going to the tavern.
II.
A.
Before defendant testified, the judge conducted a brief Sands hearing to decide whether defendant's 2008 conviction would be admissible for impeachment purposes. The prosecutor agreed to "sanitize" the conviction by inquiring only as to the date and degree of the crime, and the sentence imposed. See State v. Brunson, 132 N.J. 377, 391 (1993) (holding that when a defendant testifies and has been convicted of a crime that is "same or similar to the offense charged, the State may introduce evidence of defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted").
State v. Sands, 76 N.J. 127 (1978).
The following occurred during direct examination of defendant:
Q: Now you've had a couple of situations of your own as far as the criminal justice system.On cross-examination, the prosecutor asked:
A: Right.
Q: [W]hat was the situation where you were actually arrested for and when?
A: In 2008, you mean when I was convicted of the DWI? Yeah, I had a DWI and . . . unfortunately assault with an auto . . . .
Q: Vehicular assault[?]
A: Vehicular assault, because I hit a pedestrian while I was drunk.
Q: Do you ever think about that?
A: Every day.
Q: [T]he conviction date was May of 2008; right?There was no objection. On re-direct examination, defense counsel asked defendant to elaborate on his reason for leaving the bar on the night in question, and defendant reiterated that he left because he was fearful after the victim's prior threats.
A: Yes.
Q: And it wasn't for one offense, which was the [a]ssault by [a]uto that you told us about; correct? It was for two offenses; correct?
A: Leaving the [s]cene, they were packaged together; right? Leaving the [s]cene of an [a]ccident.
Q: Which is a [f]ourth [d]egree [c]rime?
A: Right.
Q: And you left the scene of this one as well; correct?
A: Yeah.
In her final jury instructions, the judge provided a near verbatim recitation of Model Jury Charge (Criminal), Credibility - Prior Conviction of a Defendant (2003). Defendant had no objection and sought no other charge.
In Points I and II, defendant argues that the prosecutor engaged in misconduct by eliciting the exact nature of the crime for which he was convicted, and by insinuating that his prior conviction was proof of defendant's propensity for flight. Defendant argues the judge should have sua sponte instructed the jury to disregard the evidence, or, alternatively, she should have sua sponte issued an appropriate limiting instruction as to the proper use of the evidence under N.J.R.E. 404(b).
Defendant also argues that trial counsel provided ineffective assistance by initially asking specific facts about the prior conviction. Rather than address the argument here, we permit defendant to preserve the issue should he choose to file a claim for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.").
As Justice Albin recently wrote:
[A] trial is not a perfectly scripted and choreographed theatrical presentation; rather, it is an extemporaneous production whose course is often unpredictable given the vagaries of the human condition.Considering the Court's instructive words, we reject defendant's contentions.
Attorneys will sometimes pose inartfully crafted questions, and even the most precise question may bring an unexpected response from a witness. In any trial, inadmissible evidence frequently, often unavoidably, comes to the attention of the jury.
Moreover, attorneys making strategic decisions based on information within their exclusive ken -- information oftentimes unknown to the trial judge -- are in the best position to gauge when to object to a perceived error and whether to request a curative instruction. Whether testimony or a comment by counsel is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters peculiarly within the competence of the trial judge.
[State v. Yough, 208 N.J. 385, 397 (2011) (citations omitted) (internal quotation marks omitted).]
It was defense counsel who initially asked defendant about his prior conviction and in doing so elicited facts about the precise offense. Certainly, "[a] defendant wary of jury speculation about the unspecified offense may introduce evidence of the nature of the prior conviction." Brunson, supra, 132 N.J. at 392. The limitation is only imposed upon the State. Ibid.
Without specifying its nature, the prosecutor properly asked defendant if he had been convicted of a second crime. Defendant's answer provided the nature of the crime, i.e., "[l]eaving the scene of an accident." To this point, the prosecutor did nothing improper.
We agree that the prosecutor's offhand remark, "[a]nd you left the scene of this one as well," was improper, because, following closely upon the prior answer, it inferred that defendant had a propensity for fleeing. See N.J.R.E. 404(b) ("[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith.").
However, "[a] finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). To warrant reversal, "'the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting Smith, supra, 167 N.J. at 181-82). One factor to consider is whether there was a proper and timely objection to the comment, State v. Jackson, 211 N.J. 394, 409 (2012), because the lack of any objection indicates defense counsel "perceived no prejudice." State v. Smith, 212 N.J. 365, 407 (2012).
In this case, although entirely unnecessary and gratuitous, the prosecutor's remark did not amount to plain error. See R. 2:10-2 (error of such nature that it is "clearly capable of producing an unjust result"). It was fleeting in nature and, on re-direct examination, defense counsel took the opportunity to have defendant explain that he fled the bar because he was afraid, a theme central to his assertion of self-defense. In sum, the comment, taken together with defendant's answer, do not raise a reasonable doubt in our minds that the jury was led to an unjust result. State v. Branch, 182 N.J. 338, 353 (2005).
To the extent we have not specifically addressed the other arguments raised by defendant in Points I and II, they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
B.
Defendant argues in Point III that the judge's charge on "flight" was erroneous and confusing. Since there was no objection at trial, we review the contention under the plain error standard. R. 2:10-2. The Court has said,
[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 a clear capacity to bring about an unjust result."
[State v. Burns, 192 N.J. 312, 341 (2007) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
The alleged error must be considered in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). Though an erroneous jury charge is a "poor candidate[] for rehabilitation under the plain error theory[,]" Jordan, supra, 147 N.J. at 422 (citation omitted) (internal quotation marks omitted), any alleged error must be assessed in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
"Evidence of flight or escape from custody by an accused generally is admissible as demonstrating consciousness of guilt, and is therefore regarded as probative of guilt." State v. Mann, 132 N.J. 410, 418 (1993). "If a defendant offers an explanation for the departure, the trial court should instruct the jury that if it finds the defendant's explanation credible, it should not draw any inference of the defendant's consciousness of guilt from the defendant's departure." Id. at 421.
Our model jury charge on "flight" present two alternatives for the judge, the latter of which provides:
There has been some testimony in the case from which you may infer that the defendant fled shortly after the alleged commission of the crime. The defense has suggested the following explanation:In other words, this version "should be used where the defen[dant] has not denied that he/she departed the scene but has suggested an explanation." Ibid.
(SET FORTH EXPLANATION SUGGESTED BY DEFENSE)
If you find the defendant's explanation credible, you should not draw any inference of the defendant's consciousness of guilt from the defendant's departure.
If, after a consideration of all the evidence, you find that the defendant, fearing that an accusation or arrest would be made against him/her on the charge involved in the indictment, took refuge in flight for the purpose of evading the accusation or arrest, then you may consider such flight in connection with all the other evidence in the case, as an indication or proof of a consciousness of guilt.
It is for you as judges of the facts to decide whether or not evidence of flight shows a consciousness of guilt and the weight to be given such evidence in light of all the other evidence in the case.
[Model Jury Charge (Criminal), Flight (2010) (emphasis added).]
Although defendant testified that he ran from the bar because he feared the victim, the judge failed to give this version of the model charge, providing, instead, the first version of the model charge with a modification, which we emphasize below:
There has been testimony in this case from which you may infer that the defendant fled shortly after the alleged commission of the crime. The defendant denies any flight, and claims that he fled in fear of [the victim]. The question of whether the defendant fled after the commission of the crime is another question of fact for your determination. Mere departure from a place where a crime has been committed does not constitute flight. If you find that the defendant fearing that an accusation or arrest would be made against him on the charge involved in the Indictment, took refuge in flight for the purpose of evading the accusation or arrest of that charge, then you may consider such flight in connection with all the other evidence in the case as an indication of -- or as an indication of proof of consciousness of guilt. Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest from the offense charged in the Indictment.
If after consideration of all the evidence you find that the defendant fearing that an accusation or arrest would be made
against him on the Charge involved -- on the Charges involved in the Indictment, he took refuge and flight for the purpose of evading the accusation or arrest then you may consider such flight in connection with all the other evidence in this case as an indication or proof of consciousness of guilt.
It is for you as judges of the facts to decide whether or not evidence of flight shows a consciousness of guilt and the way to be given such evidence in light of all the evidence in the case.
[(Emphasis added).]
While we might agree that the judge should have provided the jury with the full version of the model charge that applies whenever a defendant has offered an explanation for his departure, we cannot conclude that the charge as given was "clearly capable of producing an unjust result." R. 2:10-2. The instructions actually given fully informed the jury that defendant denied his departure constituted flight, provided the jury with defendant's proffered reason, and further told the jury that it had to find defendant intended to flee before it could consider such flight as evidence of consciousness of guilt. Even if the trial judge should have told the jury that if it accepted defendant's version of self-defense or fear of the victim, it could not find "flight," that error was harmless beyond any reasonable doubt, since the jury rejected entirely defendant's version of events.
C.
In his supplemental pro se brief, defendant argues that the State failed to adduce sufficient evidence that the victim suffered serious bodily injury. The argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). We add only the following.
The Criminal Code defines "[b]odily injury" as "physical pain, illness or any impairment of physical condition[,]" "[s]ignificant bodily injury" as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses[,]" and "[s]erious bodily injury" as that "which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]" N.J.S.A. 2C:11-1(a)-(b), (d).
In this case, the victim received more than one hundred stitches to his face, resulting in permanent scarring. The jury had the opportunity to evaluate the serious nature of his injuries when he testified, and the judge's instructions on the elements of the crime were proper. We find no basis to reverse defendant's conviction for SBI aggravated assault.
III.
Lastly, defendant argues that his sentence should be overturned because the judge found certain aggravating sentencing factors that do not apply. He also argues, and the State concedes, that the JOCs must be amended to reflect the actual sentences imposed by the judge.
The JOC following trial on the indictment lists aggravating factors one, two, three, six and nine. N.J.S.A. 2C:44-1(a)(1) "(The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner"); 2C:44-1(a)(2) "(The gravity and seriousness of the harm inflicted on the victim . . . ."); 2C:44-1(a)(3) (the risk of re-offense); 2C:44-1(a)(6) (the extent of defendant's prior criminal record); and 2C:44-1(a)(9) (the need to deter defendant and others). The judgment also lists as a mitigating factor that defendant expressed remorse. See State v. Rice, 425 N.J. Super. 375, 381 (App. Div. 2012) ("Although our sentencing statute lists only thirteen mitigating factors, we have recognized the court's ability to use non-statutory mitigating factors in imposing a sentence."), certif. denied, 212 N.J. 431 (2012).
We recognize that "[a]ppellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "'competent credible evidence in the record.'" Id. at 128 (quoting State v. Beienek, 200 N.J. 601, 608 (2010)). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Id. at 127 (quoting Bieniek, supra, 200 N.J. at 608). When the judge has followed the sentencing guidelines, and her findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Defendant does not argue that aggravating factors, three, six and nine do not apply, or that the judge should have found other mitigating factors. He contends that the judge mistakenly found aggravating factor one based upon defendant's use of excessive force. In considering this factor, the judge said:
[I]n this case we have a situation of excessive force. The victim didn't even touch you . . . . You . . . hit the victim over the head causing the tremendous scar throughout the entire part of his face. . . . [A]nd he's got to live with it, just like the Prosecutor said. He's got to live with that scar and every time he looks into the mirror he's going to remember that assault. He's going to remember that surgery. He's going to remember everything that happened to him because of nonsense.Shortly thereafter, the judge said, "we all saw the video and there was no contact between you and the victim until you hit him over the head with the bottle."
The Court recently noted that "[w]hen applying [factor one], the sentencing court reviews the severity of the defendant's crime, the single most important factor in the sentencing process, assessing the degree to which defendant's conduct has threatened the safety of its direct victims and the public." State v. Fuentes, 217 N.J. 57, 74 (2014) (citations omitted) (internal quotation marks omitted). "When it assesses whether a defendant's conduct was especially 'heinous, cruel, or depraved', a sentencing court must scrupulously avoid 'double-counting' facts that establish the elements of the relevant offense." Id. at 74-75. "[A] sentencing court may justify the application of aggravating factor one . . . by reference to the extraordinary brutality involved in an offense." Id. at 75. "A sentencing court may consider aggravating facts showing that [a] defendant's behavior extended to the extreme reaches of the prohibited behavior." Ibid. (alteration in original) (internal quotation marks omitted).
Although the judge referenced defendant's use of "excessive force," we think a fair reading of her comments reveals a finding that defendant's conduct was so extreme, unprovoked and violent that aggravating factor one applied. This finding is amply supported by the evidence the judge cited, and there is no basis to disturb it.
Defendant next argues that the judge's finding of aggravating factor two was the result of double counting, i.e., that the serious harm inflicted on the victim was an essential element of SBI aggravated assault. Although that factor is listed on the judgment of conviction, the sentencing transcript fails to reveal that the judge actually considered that factor or made a finding that it applied. "At the time of sentencing, the court must 'state reasons for imposing such sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence.'" Id. at 73 (quoting R. 3:21-4(g)). The judge failed to do so in this case.
Because we are remanding the matter so that the judge may clarify other aspects of her sentence, we order that she do the same in this regard. We express no particular opinion as to whether aggravating factor two should or should not apply under the facts of this case. After clarifying her finding regarding aggravating factor two, the judge shall resentence defendant accordingly.
Lastly, defendant and the State both agree that the JOCs are incorrect. The JOC entered after trial on the indictment reflects that the sentence on count four, fourth-degree unlawful possession of a weapon, was to run consecutive to the sentences imposed on the other counts. However, the transcript reveals that the judge imposed a concurrent sentence on this count.
When sentencing defendant on the VOP, the judge said:
Now, on the VOP that you pled guilty to[,] it[']s a separate crime. It's a separate victim and it has absolutely nothing to do with this case . . . . [Y]ou pled guilty to both a fourth degree and a third degree crime. On the fourth degree crime I'm going to give you eighteen months consecutive to your indictment case, which was the trial.
. . . .
On the third degree you're going to get four years but concurrent so it's a total of seven years [in] New Jersey State Prison.
[(Emphasis added).]
The sentences imposed by the judge actually total seven-and-a-half years of incarceration.
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The JOC, however, indicates that the sentences imposed on the two counts of the original accusation were "both to run concurrent to" the sentences imposed on the indictment. Additionally, the JOC incorrectly lists the sentence on count one, a third-degree offense, as eighteen months, and the sentence on count two, a fourth-degree offense, as four years.
We remand the matter to the trial judge so she can clarify her sentences and enter amended JOCs accordingly.
We affirm defendant's conviction; we remand the matter to the trial judge for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION