Opinion
DOCKET NO. A-1386-14T1
01-26-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY T. FONTANEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Fisher and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-05-1110. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals his conviction and sentence following a jury trial on charges arising out of two shootings in the City of Camden. Based upon a review of the record and the applicable law, we affirm defendant's convictions but remand for resentencing and an amendment of the judgment of conviction.
I.
On September 23, 2010, Emmanuel Mulero was shot and injured outside of a Camden barbershop. Less than three hours later, shots were fired at Shawn Wilcox as he drove his motor vehicle away from the scene of an altercation a few blocks from the location of the Mulero shooting.
Defendant was subsequently charged in an indictment with offenses arising from the shootings. Defendant was charged in six counts with crimes related to the shooting of Mulero: first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), (count three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4), (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), (count five); and second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1(b)(1), (count six).
Defendant was charged in five counts with crimes related to the shooting of Wilcox: first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, (count seven); second-degree aggravated assault of Wilcox, N.J.S.A. 2C:12-1(b)(1), (count eight); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), (count nine); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4), (count ten); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), (count eleven).
Defendant was also charged with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), (count twelve).
Defendant made a motion requesting severance of the counts related to the Mulero shooting from those related to the Wilcox shooting. The judge determined that joinder of the counts in the indictment was proper because the offenses charged were linked by evidence showing the same gun was used to commit both shootings within a short time and distance of each other, Wilcox's identification of defendant as the shooter, and defendant's admission that he shot Mulero. The motion judge reasoned that "where the evidence establishes that multiple offenses are linked as part of the same transaction or series of transactions, they may be joined in a single indictment."
The court then considered whether any potential prejudice to defendant otherwise required severance of the charges. The court conducted an analysis under State v. Cofield, 127 N.J. 328, 338 (1992), and found defendant would not be prejudiced if the crimes were tried together because there was testimonial and forensic evidence as to each of the shootings that was admissible under N.J.R.E. 404(b) to prove the identity of defendant as the shooter and his opportunity to commit both shootings.
The motion judge further noted that any potential prejudice to defendant "can be mitigated or minimized by a limit[ing] instruction given by the court," and that
the jury should be instructed, and it will, that it must consider the evidence presented on each incident individually and not as proof that the defendant is either predisposed to such conduct or that on any particular occasion he acted in conformity with that other conduct.The court denied defendant's severance motion and the case proceeded to trial.
The evidence at trial showed that at around 7:45 p.m. on September 23, 2010, Mulero sat outside of a barbershop and was approached by two men: a skinny man wearing a white shirt and a "shorter and fuller" man with his face covered, wearing a black hooded sweatshirt. The skinny man struck Mulero in the face and Mulero fought back until the man in the sweatshirt brandished a handgun. Mulero pushed the skinny man into the man with the gun and was shot in the back while he attempted to run away. The two men immediately fled.
Less than three hours later, Wilcox drove his van to a Camden home on North 25th Street where his daughter lived. The home was in close proximity to the scene of the Mulero shooting. Upon arrival, Wilcox saw defendant sitting on a porch with other men. Defendant was known to Wilcox; they had a prior verbal altercation that resulted in Wilcox calling the police. On September 23, 2010, defendant demanded money from Wilcox.
Wilcox told defendant, "[g]et the fuck away from me," and walked back to the van. Wilcox heard defendant ask one of the other men to pass him something. Wilcox believed defendant was referring to a gun, so he entered the van and began driving away. Wilcox saw defendant run into the middle of the street and fire three or four shots at the van. Wilcox fled the scene at a high rate of speed, and was subsequently stopped by the police.
Within two hours of the incident, Wilcox gave a statement to the police stating he was "100 percent positive" it was defendant who shot at him and identified defendant in a photo. Wilcox described defendant as short and chubby, and wearing a black hooded sweatshirt.
Two months after the shooting, Anthony Coltrane was in jail on unrelated criminal charges. He advised the police that on September 23, 2010, his nephew Raul Rivera and defendant ran into Coltrane's Camden home and explained they had been involved in a fight at a barbershop. Defendant told Coltrane he shot someone in the back or side.
Coltrane testified that he, Rivera, and defendant subsequently left Coltrane's house and went to visit defendant's children at a home on North 25th Street, the same home where Wilcox's daughter lived. Coltrane, Rivera, and defendant were outside of the home when Wilcox arrived in his vehicle. Coltrane saw Wilcox and defendant argue, Wilcox return to his vehicle, and, as Wilcox drove away, heard a shot coming from defendant's direction. Coltrane said he did not see defendant holding a gun, but after hearing the shot, he helped defendant and Rivera unsuccessfully look for bullet shells before they fled the scene.
Evidence at trial showed the New Jersey State Police Ballistics Unit compared the bullet casing recovered from the scene of the Mulero shooting with the casings found at the scene of the Wilcox shooting. The analysis revealed the casings were fired from the same gun.
The court conducted a charge conference with counsel. Defense counsel sought a "false in one, false in all" jury charge based on the claim that Coltrane had been a hesitant witness and had a motive to lie to protect his nephew Rivera, who defense counsel suggested may have been the shooter. The State objected, arguing the jury charge concerning the credibility of witnesses would suffice. The trial court declined to issue the false in one, false in all charge, explaining:
I don't think that the situation actually rose to a really lying type of situation that — he didn't recall things. He was certainly scared. He was nervous, but . . . I can't see that . . . a false in one, false in all charge would be applicable. So, I will deny that.
There was no request for a jury charge concerning the use of N.J.R.E. 404(b) evidence, and no objection to the court's proposed charge that did not include it. The court, however, instructed the jury to consider each of the counts in the indictment separately.
Defendant was convicted on all charges except for first-degree attempted murder of Mulero, N.J.S.A. 2C:5-1 and 2C:11-3, charged in count one. At sentencing, the court merged the convictions for the counts three through five with his conviction for second-degree aggravated assault of Mulero under count two, and counts eight through eleven with his conviction for attempted murder of Wilcox under count seven. Defendant was sentenced to an eight-year custodial term on count two, a seven-year term on count six, and a fifteen-year term on count seven, each of which was subject to the requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced to eight years, with a four-year period of parole ineligibility, for second-degree unlawful possession of a weapon under count twelve. The court ordered that defendant serve the sentences under counts two, seven, and twelve consecutively, and his sentence under count six concurrently to the sentences under counts two, seven and twelve. This appeal followed.
Defendant appeals his conviction and sentence asserting the following:
POINT ONE
THE DECISION TO DENY THE DEFENDANT'S SEVERANCE MOTION WAS UNASSAILABLE AS LONG AS THE TRIAL JUDGE FOLLOWED THROUGH ON THE MOTION JUDGE'S DETERMINATION THAT A JOINT TRIAL COULD ONLY BE HAD IF A PROPER LIMITING INSTRUCTION WERE GIVEN REGARDING THE PROHIBITED USES OF ONE SHOOTING TO SHOW A PROPENSITY TO COMMIT THE OTHER SHOOTING; WHEN THE TRIAL JUDGE FAILED TO GIVE ANY SUCH INSTRUCTION, THE DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL. (Partially Raised below)
POINT TWO
THE TRIAL JUDGE IMPROPERLY DENIED [] DEFENDANT'S REQUEST FOR A "FALSE IN ONE, FALSE IN ALL" INSTRUCTION.
POINT THREE
THE MATTER SHOULD BE REMANDED FOR MERGER OF THE CONSPIRACY CONVICTION AND FOR RESENTENCING TO A LOWER AGGREGATE TERM.
II.
Defendant first argues his convictions must be reversed because the judge failed to sua sponte instruct the jury about the appropriate and prohibited uses of evidence concerning the separate shootings under N.J.R.E. 404(b). See, e.g., Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts" (June 4, 2007). The model charge instructs the jury it may consider evidence of other uncharged crimes or bad acts for limited permitted purposes, but that it may not consider the evidence as demonstrating a defendant's propensity to commit the charged crimes. Ibid. Defendant asserts that the court said such a charge would be given when defendant's motion for severance was denied, and claims the failure to give the charge permitted the jury to infer defendant had a propensity to commit the separate offenses.
Although the court advised a limiting instruction would be given at trial, there was no request for the instruction at trial and no objection to the court's proposed jury instructions that did not include it. We therefore review the court's alleged error under the plain error standard, reversing only if such an error was clearly capable of producing an unjust result. R. 2:10-2. The Court has said that
The judge who denied defendant's severance motion was not the judge who presided over defendant's trial.
[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) (second alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
We assess the alleged error here in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). 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. 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)).
Defendant acknowledges the judge's denial of his pre-trial severance motion was proper, and that the judge's reasoning, i.e., the crimes could be tried jointly because the evidence as to each shooting was admissible under N.J.R.E. 404(b) to prove identity, is "unassailable." See State v. Pitts, 116 N.J. 580, 601-02 (1989) (explaining the inquiry on a motion to sever is "whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges."). Thus, an instruction on the permissible and impermissible uses of the evidence under N.J.R.E. 404(b) is technically inapplicable, because the jury was not required to consider evidence of uncharged bad acts.
Defendant relies on State v. Krivacska, 341 N.J. Super. 1 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002), and argues a limiting instruction is required where separate crimes are prosecuted during a single trial. In Krivacska, the defendant was charged with, and convicted of, separate sexual crimes against two minor victims. Id. at 11-19. The defendant appealed his conviction and argued the trial court's failure to provide a limiting instruction on the use of N.J.R.E. 404(b) evidence as one of his grounds for appeal. Id. at 20.
We criticized the trial judge's failure to provide a limiting instruction but concluded the failure was not plain error. Id. at 42. We noted that an "appropriate instruction would have apprised the jury of its right to consider the other- crime evidence in determining" whether defendant had the opportunity to commit the sexual assaults, as the State contended. Id. at 43. We determined the court's failure to provide the instruction was not plain error because (1) the defendant failed to request the limiting instruction, (2) the defendant had "little to gain and much to lose by requesting a limiting instruction," and (3) the "thrust of the [jury] instruction[s] [was] to consider each charge separately." Id. at 42-43.
Here, there was no request for a limiting instruction and no objection to the court's proposed jury charge that did not include it. In addition, the court directed the jury to separately evaluate each of the crimes charged in the indictment in almost the identical terms the trial court used in Krivacska. Id. at 42. The court instructed the jury:
Now there are twelve offenses charged in the indictment. They are separate offenses by separate counts in the indictment. In your determination of whether the State has proven the defendant guilty of the crimes charged in the indictment beyond a reasonable doubt, the defendant is entitled to have each count considered separately by the evidence which is relevant and material to that charge based on the law as I gave it to you . . . .
Moreover, based on our review of the record we are convinced defendant did not suffer any prejudice because if the model jury charge or a similar limiting charge had been provided, the jury would have been instructed it could consider evidence of the separate shootings when evaluating the State's evidence concerning the most significant issue in the case - the identity of the shooter. Thus, a limiting instruction would have reinforced that the evidence of the separate crimes could be used to conclude defendant was properly identified as the shooter at both shootings. It was not in defendant's interest to have the court emphasize evidence demonstrating he was correctly identified as the shooter because the primary focus of his defense was that the State failed to prove he was the shooter beyond a reasonable doubt.
We are convinced "it is doubtful such an instruction would have aided defendant's case," id. at 43, and defendant had little to gain by requesting the charge. Instead, it appears the failure to request the limiting instruction represented a "well reasoned strategic decision" by counsel who handled both defendant's severance motion and trial. Id. at 44.
We also discern no basis in the record to conclude "the jury considered the other-crime evidence to find a general propensity on the part of defendant to commit" the separate shootings. Id. at 43. The jury's compliance with the court's instruction to address the charges separately is shown by the jury's acquittal of defendant of the attempted murder of Mulero charged in count one. Ibid.
We also reject defendant's contention that the omission of a limiting instruction was plain error based on his claim "there was no evidence beyond the testimony of Anthony Coltrane to tie defendant to the first shooting." We are satisfied that because there was substantial evidence supporting defendant's guilt including Coltrane's testimony, the ballistics evidence, Wilcox's identification of defendant, the close temporal and geographic proximities of the offenses, and the consistency between Mulero's and Wilcox's descriptions of the shooter and the shooter's clothing, the failure to give a limiting instruction was not capable of producing an unjust result and therefore was not plain error. See Chapland, supra, 187 N.J. at 289 (explaining in a challenge to a jury instruction, finding plain error depends in part "on an evaluation of the overall strength of the State's case.").
We next address defendant's contention the court erred in rejecting his request for a "false in one, false in all" jury charge. Defendant objected to the judge's denial of his request for the charge, and we therefore review the judge's decision under the harmful error standard. R. 2:10-2. The harmful error rule is essentially identical to the plain error rule. Under both rules an error will not lead to reversal unless it is clearly capable of producing an unjust result. State v. Macon, 57 N.J. 325, 337-38 (1971). An error will be found harmless unless there is a reasonable doubt that the error contributed to the verdict. Id. at 338; State v. Slobodian, 57 N.J. 18, 23 (1970).
The decision whether to administer the false in one, false in all charge rests within the trial court's discretion, 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), and should be given when it is shown that a witness consciously lied about a material fact. Capell v. Capell, 358 N.J. Super. 107, 111 n.1 (App. Div.), certif. denied, 177 N.J. 220 (2003).
Here, defendant argues the court abused its discretion by failing to give the charge because the evidence supported a finding Coltrane consciously lied about the Wilcox shooting and defendant's admission he shot Mulero. The judge, however, attributed Coltrane's difficulties in recalling events occurring three years before trial to nervousness and a lack of recall. The judge determined there was no evidence Coltrane consciously lied. The record supports the court's conclusions and we discern no abuse of discretion in his denial of defendant's request for a false in one, false in all instruction.
We are also satisfied the omission of the instruction was not capable of producing an unjust result. R. 2:10-2. Defendant was not prejudiced by the omission of the charge. The jury was otherwise instructed to consider and determine Coltrane's credibility and advised it could reject all or part of Coltrane's testimony if it determined his testimony was not credible.
In pertinent part, the judge instructed the jury to determine the credibility of each witness on the witness's appearance and demeanor, ability to reason, observe, recollect, and relate, and possible bias, and whether the witness testified with an intent to deceive. The jury was instructed that through its analysis of a witness's credibility, it could accept all of the witness's testimony, "a portion of it, or none of it."
The court further reminded the jury that Coltrane made inconsistent statements and instructed the jury to consider the inconsistencies in determining Coltrane's credibility. In sum, defendant fails to demonstrate the court abused its discretion in denying his request for the false in one, false in all charge, or that the denial constituted a harmful error.
Last, defendant challenges the court's imposition of his sentence. Defendant argues the court erred by denying his motion to merge the conviction for conspiracy to commit a second-degree assault under count six into his conviction under count two for the second-degree aggravated assault upon Mulero, and in imposing three consecutive sentences for the attempted murder of Wilcox, the aggravated assault upon Mulero, and the unlawful possession of a gun.
We review sentencing decisions deferentially and do not substitute our judgment for that of the sentencing court. State v. Fuentes, 217 N.J. 57, 70 (2014) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Our role is confined to whether there is a clear showing of abuse of discretion. See State v. Blockmon, 202 N.J. 283, 297 (2010) ("Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard"). An appellate court must affirm the sentence unless
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Fuentes, supra, 217 N.J. at 70 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Defendant argues the court should have merged his conviction for conspiracy to commit aggravated assault under count six with his conviction for the second-degree aggravated assault of Mulero under count two. We agree. A defendant "may not . . . be convicted of more than one offense if one offense consists only of a conspiracy . . . to commit the other." N.J.S.A. 2C:1-8(a)(2). Count six of the indictment charged defendant with conspiracy to commit aggravated assault, and defendant was convicted of the completed offense of aggravated assault under count two. Thus, defendant's conviction for conspiracy must be merged with his conviction for the completed crime because it was the object of the conspiracy charged in the indictment. State v. Hardison, 99 N.J. 379, 381-83 (1985).
Because we are convinced defendant's conviction for conspiracy to commit aggravated assault under count six merges with his conviction for second-degree aggravated assault of Mulero under count two, it is unnecessary to consider his alternative contention that his conspiracy conviction should merge with his conviction for second-degree aggravated assault of Wilcox under count eight.
We next consider defendant's argument that the court erred by imposing consecutive sentences on defendant's convictions for aggravated assault of Mulero (count two), attempted murder of Wilcox (count seven), and unlawful possession of a weapon (count twelve). In its determination of whether to impose a consecutive sentence, the court must consider the
facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous . . . .
[State v. Carey, 168 N.J. 413, 422-23 (2001) (quoting State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986)).]
Based upon our review of the record, we are convinced the evidence supports the court's imposition of consecutive sentences for the aggravated assault of Mulero (count two) and attempted murder of Wilcox (count seven) because, as the court noted, the crimes "were independent acts," with "separate acts of violence," against "separate victims" at "different times," and "different locations."
We are not persuaded by defendant's claim that the judge's finding the crimes were sufficiently interrelated to permit joinder in the indictment bars the imposition of consecutive sentences. The motion judge's ruling on defendant's severance motion, which is not challenged on appeal, was not made under the Yarbough standard and does not require a finding that defendant's crimes constituted a "single period of aberrant behavior." Yarbough, supra, 100 N.J. at 644. Moreover, consideration of the close temporal proximity of each offense is but one factor under Yarbough, and the sentencing court properly relied upon other pertinent factors, including the multiple victims, separate acts of violence, and defendant's different objectives, to support the decision to impose consecutive sentences. See State v. Brown, 138 N.J. 481, 560 (1994) (finding that "consecutive sentencing for multiple murders that occur in close sequence is not improper"), overruled on other grounds, State v. Cooper, 151 N.J. 326, 377 (1997).
Defendant also argues the court erred by imposing a consecutive term for his conviction for second-degree unlawful possession of a weapon under count twelve. The State argues that imposition of the consecutive sentence was permissible under State v. DeLuca, 325 N.J. Super. 376, 392-93 (App. Div. 1999), aff'd as modified, 168 N.J. 626 (2001), because a conviction of unlawful possession of a weapon "does not merge with a substantive offense committed with the weapon." See also State v. Cooper, 211 N.J. Super. 1, 22-23 (App. Div.) (holding conviction for unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), does not merge with conviction for possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)), certif. denied sub nom., State v. Lawson, 105 N.J. 525 (1986).
Defendant does not contend his conviction for unlawful possession of a weapon should have been merged with any other offense. Instead, he argues the court erred because it imposed the consecutive sentence on count twelve without applying the Yarbough standard. See State v. Copling, 326 N.J. Super. 417, 441-42 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000) (reversing a sentence of consecutive terms for murder and unlawful possession of a handgun without a permit where sentencing court only found that two of the Yarbough factors applied).
Our review of the record confirms the court did not make specific findings under Yarbough supporting the imposition of a consecutive sentence for defendant's unlawful possession of a weapon conviction. The court imposed consecutive sentences on his convictions for aggravated assault and attempted murder based on its findings that defendant committed "separate acts of violence" with "separate victims." The findings are inapplicable to the court's imposition of the consecutive sentence on defendant's conviction for unlawful possession of a weapon. Mulero and Wilcox cannot properly be considered multiple victims of defendant's unlawful possession of a weapon; rather they comprise only part of the victim of the offense, "society as a whole." Ibid.
A sentencing court is required to "separately state the reasons for imposing a consecutive sentence" under the guidelines established in Yarbough. State v. Molina, 370 N.J. Super. 49, 59 (App. Div.), certif. denied, 182 N.J. 142 (2004). Where, as here, the court has not articulated its reasons, we "remand for reconsideration of the consecutive sentence[e]" imposed on count twelve and for "a statement of reasons for the decision that takes the relevant factors into consideration." Ibid.; State v. Gallagher, 286 N.J. Super. 1, 22 (App. Div. 1995).
In sum, we affirm defendant's convictions and sentences and the imposition of consecutive sentences on counts two and seven. The judgment of conviction shall be amended to reflect that count six merges with count two. We vacate the imposition of a consecutive sentence on count twelve and remand for the court to consider on resentencing whether a consecutive sentence should be imposed under the Yarbough standard.
The judgment of conviction appears to include an error that must be corrected by the court on remand. The judgment of conviction reflects that defendant's sentence under count six was concurrent to his sentence under count seven, but also provides that defendant's sentence on count seven shall run consecutive to his sentence on count six. It appears, however, the court intended that defendant serve his sentence on count six concurrent to, and not consecutive to, his sentence on count seven. --------
Affirmed in part, vacated and remanded in part. 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