Opinion
DOCKET NO. A-2235-12T1
07-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WAYNE I. HODGES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Derek T. Nececkas, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed pro se supplemental briefs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Rothstadt and Currier. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 11-02-0192, 12-02-0092. Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Derek T. Nececkas, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed pro se supplemental briefs. PER CURIAM
Defendant Wayne I. Hodges appeals from the Law Division's judgment of conviction (JOC), entered after a jury convicted him of committing various crimes arising from his role in a robbery at gunpoint. He also challenges the court sentencing him to an aggregate term of twenty years imprisonment for the robbery and a fourteen-year term on another unrelated indictment for the same offense. In support of his appeal, defendant argues through counsel that the trial court improperly excused a juror after deliberations began, incorrectly denied his motion for acquittal on two charges, and imposed an "excessive [and] unduly punitive" sentence. In a supplemental pro se brief, defendant further avers that the prosecutor improperly exercised preemptory challenges during jury selection to exclude minorities, and that the court erred in reading a subsequently-dismissed charge to the jury array and in allowing the prosecutor to ask impermissible and leading questions while cross-examining defendant.
Having considered defendant's arguments in light of our review of the record and applicable legal principles, we affirm defendant's conviction but remand the matter to the Law Division for amendment of the JOCs to reflect that the sentences imposed on the two indictments are to run concurrently.
On February 24, 2011, a Union County Grand Jury returned Indictment No. 11-02-0192, charging then-nineteen-year-old defendant with two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one and two); first-degree use of a person seventeen years old or younger to commit a crime, N.J.S.A. 2C:24-9 (count three); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); third-degree terroristic threats, N.J.S.A. 2C:12-3(a), (b) (count seven); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count eight).
The charges arose from events that occurred on October 16, 2010, which are summarized as follows from the evidence presented to the jury. At approximately 8:00 p.m., defendant's victims, B.W. (Bob) and C.K. (Carl), were walking with J.O. (Jeff) to Bob's home. Bob had just returned from downtown Rahway, where he had purchased marijuana. Unbeknownst to Bob, Jeff was under the impression that Bob had stolen his bicycle and had arranged to have Bob robbed by J.B. (Jack). At the time, Jack was at home with K.F. (Kenny) and another boy discussing robbing Bob of his marijuana. The group called defendant to ask for a ride to the area where they expected to find Bob walking home with Jeff and Carl.
Bob, Carl, and Jeff were all sixteen years old, though Jeff was just shy of his seventeenth birthday.
Jack was sixteen years old and Kenny was seventeen.
Defendant drove the group to the area, parked his car on the street, turned off his lights, and waited until Bob, Carl, and Jeff came into view. When they arrived, defendant, Kenny, and Jack exited the vehicle. When defendant got out, he went to the trunk of the car before joining Jack and Kenny. The three then stopped Bob, Carl, and Jeff, and defendant pointed a gun at the other boys, and demanded their valuables. He then held the gun to Bob's chest, while Kenny and Jack searched Bob's and Carl's pockets. They stole twenty dollars, cigars, and marijuana from Bob, and five dollars from Carl. The three went back to defendant's car, where Jack gave defendant three bags of marijuana taken from Bob. Defendant then drove the group away.
According to Bob, defendant said to the victims "give me all your stuff before I start poppin'." Jeff testified that defendant told them to "run [their] shit."
At defendant's ensuing trial, and prior to the completion of jury selection, the State moved to dismiss the third count of the indictment, and to amend count four to state that it alleged defendant conspired only with Jack and Kenny. The court read the amended indictment to members of the original array who had been read the original indictment and remained for jury selection, and to a new array called for continued jury selection.
The original indictment alleged he may have also conspired with Jeff.
Following the close of the State's case, defendant moved for acquittal as to counts four and seven. The trial court denied the motion. Regarding the conspiracy charge, the court found evidence of an agreement between defendant and Jack to rob Bob. The court also found sufficient evidence to support a jury finding that defendant made terroristic threats during the robbery, relying on Bob's testimony that defendant said, "give me all your stuff before I start poppin'," while pointing a gun at him. The trial continued with defendant presenting his case through his own testimony and then resting.
The court charged the jury on August 9, 2012. The jury began deliberations at 2:24 p.m. that day, and continued for approximately two hours. At the end of the day, the court instructed the jury that they should return the following day, Friday. Several jurors stated that they had expected to return the following Tuesday, as the court had previously indicated to members of the second array that sessions would not be held on Fridays or Mondays, and that this new schedule presented problems. The trial judge consulted with the jurors who stated they would have a problem. Juror Fourteen stated that she planned to leave the next day for a trip to the Poconos for which she had already paid, and that, although she could be in court on Monday, she could not continue thereafter, as she was a flight attendant with flights scheduled beginning Tuesday. The court confirmed that her issue was unrelated to anything occurring during deliberations. Two other jurors stated they could not be there on Monday. After consulting with defense counsel — who in turn consulted with defendant — and the prosecutor, who both agreed to dismiss Juror Fourteen and replace her with an alternate, the court excused the juror. At the time, the jury had only deliberated for just over two hours and there was no indication they were unable to deliberate or were deadlocked as to any issue.
The jurors had originally been told that the court anticipated their service would be concluded by no later than Tuesday, August 14, 2012.
The following day, defendant moved for a mistrial based on Juror Fourteen's dismissal. The court denied the motion based upon defendant's prior consent to the juror being excused. The court found that defendant waived this argument because he could not "change his mind . . . and challenge something he agreed to after [Juror Fourteen was] long gone." The court then randomly selected one of the alternates to replace Juror Fourteen, and, after two days of deliberations, the jury returned a guilty verdict as to all remaining counts of the indictment.
Prior to being sentenced, defendant pled guilty to first-degree robbery, N.J.S.A. 2C:15-1, as charged in an unrelated indictment, pursuant to a written plea agreement. The agreement did not contain an express promise by the prosecutor regarding the sentence the State would be recommending, but stated defendant was going to argue for a fourteen-year term of imprisonment. The plea agreement did not state whether the sentence would be concurrent or consecutive to the sentence he was to receive for his conviction by the jury on the first indictment.
Union County Indictment No. 12-02-0092, filed on February 2, 2012, charged defendant with first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree unlawful possession of a weapon, namely a bottle, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).
The copy of the agreement included in defendant's appendix is missing page three of five.
On October 26, 2012, defendant appeared for sentencing on both indictments. On the first indictment, the court sentenced defendant to consecutive ten-year terms of imprisonment on counts one and two, and to a concurrent seven-year term on count six. The court merged the remaining counts into counts one and two. In its statement of reasons placed on the record, the court explained it imposed consecutive sentences on counts one and two because there were two victims. As to the second indictment, the prosecutor recommended a sentence of fourteen years. The court adopted the recommendation and "agree[d] to run [the sentence] concurrent" to the sentence imposed on the first indictment. The court entered separate JOCs for each indictment, though neither reflected the court's statement that the two indictments' sentences would run concurrently.
This appeal followed.
On appeal, defendant argues through counsel:
POINT IIn a pro se supplemental brief, he further argues:
THE TRIAL COURT ERRED WHEN IT DISMISSED JUROR FOURTEEN DURING DELIBERATIONS WITHOUT FIRST CONDUCTING A COMPREHENSIVE VOIR DIRE OF THE JUROR AND ADDRESSING A JURY QUESTION ABOUT THE CASE.
POINT II
BECAUSE THE STATE FAILED TO PROVE THE CRIMES OF SECOND-DEGREE CONSPIRACY TO COMMIT ROBBERY AND THIRD-DEGREE TERRORISTIC THREATS BEYOND A REASONABLE DOUBT, THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.
POINT III
THE SENTENCE IMPOSED WAS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.
POINT I
PROSECUTOR'S RACIAL DISCRIMINATION AGAINST AFRICAN AMERICAN AND HISPANIC[] JURORS BY USING MAJORITY OF PEREMPTORY CHALLENGES TO EXCLUDE MINORITY FROM JURY PANEL WAS PREJUDICIAL AND BIAS [sic].
POINT II
THE INTRODUCTION TO THE JURY ON THE CHARGE OF EMPLOYING A JUVENILE IN THE COMMISSION OF A CRIME, N.J.S.A. 2C:24-9 WAS IMPROPER AND PREJUDICIAL TO THE APPELLANT AT TRIAL.
POINT III
THE PROSECUTOR COMMITTED PLAIN ERROR PURSUANT TO RULE 2:10-2, SPECIFICALLY, PROSECUTOR'S CROSS-EXAMINATION OF DEFENDANT-APPELLANT DISCLOSING INABILITY TO TELL DETECTIVES ABOUT RECEIVING ILLEGAL SUBSTANCE.
SUBSECTION A.
APPELLANT'S TRIAL FAILED TO SAFEGUARD HIS RIGHT FOR FAIRNESS BY ALLOWING THE PROSECUTOR TO LEAD APPELLANT, IN TRIAL, IN FRONT OF THE JURY, TO ADMIT THAT HE H[A]D LIED TO A DETECTIVE.
SUBSECTION B.
THE TRIAL COURT ERRED IN ITS DISMISSAL OF JUROR NUMBER 14 BECAUSE JUROR WANTED TO GO ON VACATION.
We begin our review by addressing defendant's contentions about the trial court excusing Juror Fourteen after deliberations began. We find no merit to defendant's arguments.
"Our review of a trial court's decision to remove and substitute a deliberating juror because of an 'inability to continue,' pursuant to Rule 1:8-2(d)(1)," and its denial of a motion for a mistrial based upon the removal, is deferential, warranting reversal only if "the court has abused its discretion." State v. Musa, 222 N.J. 554, 564-65 (2015).
The Rule states, in pertinent part:
If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged. When such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate.
[R. 1:8-2(d)(1) (emphasis added).]
Rule 1:8-2(d)(1) permits the removal and substitution of jurors in criminal trials after deliberations have begun "only in specifically defined circumstances." State v. Jenkins, 182 N.J. 112, 123-24 (2004). Generally, a deliberating juror can be excused only for reasons personal to the individual juror — those that "do[] not pose a threat to the integrity or independence of the deliberative process." Id. at 124. Thus, removal and replacement of a deliberating juror is permissible where the juror complains of financial hardship, id. at 125 (citing State v. Williams, 171 N.J. 151, 167 (2002)), or fails to appear for continued deliberations. See Musa, supra, 222 N.J. at 567. In deciding whether to allow the substitution of a juror, a court should consider multiple factors, including:
the timing of the juror's departure, his or her explanation of the problem prompting the inquiry, and any communications from the jury that may indicate whether deliberations have progressed to the point at which a reconstituted and properly charged jury will be unable to conduct open and mutual deliberations.
[State v. Ross, 218 N.J. 130, 149 (2014).]
Applying these guiding principles, we find no abuse of discretion in the court's decision to substitute Juror Fourteen based upon her inability to conform to the trial schedule due to her planned and paid-for vacation and employment demands. Her reasons established that her "inability to continue" were purely personal and, as she confirmed, not related to the deliberative process. Similarly, as the court's substitution of Juror Fourteen was warranted and agreed to by the defendant, we find no abuse of discretion in the court's denial of defendant's motion for a mistrial the following day. See State v. Jenkins, 178 N.J. 347, 358 (2004) ("[W]hen a defendant asks the court to take his proffered approach and the court does so, . . . relief will not be forthcoming on a claim of error by that defendant.").
We find no merit to defendant's argument that the jury's questions about the definition of a handgun and the timing of certain events testified to by the witnesses demonstrated a potential conflict among jurors that required the court to voir dire the jurors to determine if Juror Fourteen's proffered reasons were merely a pretext.
We turn next to defendant's claim that the court erred in denying his motion for acquittal at the close of the State's case, pursuant to Rule 3:18-1. In his motion, defendant argued there was insufficient evidence establishing the elements of conspiracy to commit robbery, N.J.S.A. 2C:5-2 and :15-1, and terroristic threats, N.J.S.A. 2C:12-3. The trial court denied his motion, citing specific evidence presented by the State during its case-in-chief that established each element of the two offenses.
Rule 3:18-1 provides:
At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.
[R. 3:18-1.]
At the outset, we observe that, to the extent defendant's argument can be viewed as one challenging the weight of the evidence as to the two charges, it is raised for the first time on appeal and is therefore procedurally barred, as he did not move for a new trial. See R. 2:10-1; see also State v. Johnson, 203 N.J. Super. 127, 133 (App. Div.) (rejecting defendant's contention "that although he did not move for a new trial, he preserved the issue by moving for a judgment of acquittal under R. 3:18-1 at the close of the State's case"), certif. denied, 102 N.J. 312 (1985); State v. Pickett, 241 N.J. Super. 259, 265-66 (noting that, even though the defendant moved for a judgment of acquittal at the close of the State's case, his argument regarding the insufficiency of the evidence was improperly raised on appeal because he did not move for a new trial). As two different standards apply, a motion for acquittal at the close of the State's case does not preserve for appeal the issue of whether the verdict was against the weight of the evidence. See Johnson, supra, 203 N.J. Super. at 133-34.
Limiting defendant's challenge to the denial of his motion for acquittal, R. 3:18-1, "[w]e apply the same standards used by the trial court in its determination of defendant's motion." State v. Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011). Thus, "[w]e must determine whether, based on the entirety of the evidence and after giving the State the benefit of all its favorable testimony and all the favorable inferences drawn from that testimony, a reasonable jury could find guilt beyond a reasonable doubt." State v. Williams, 218 N.J. 576, 594 (2014).
"[A] motion for a new trial based on the insufficiency of the evidence, governed by Rule 3:20-1, requires a judge to determine whether the jury's verdict constitutes "a manifest denial of justice," R. 3:20-1, by "sift[ing] through the evidence to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (quoting State v. Carter, 91 N.J. 86, 96 (1982)), certif. denied, 134 N.J. 476 (1993); see also State v. Jackson, 211 N.J. 394, 413-14 (2012).
"We review the record de novo in assessing whether the State presented sufficient evidence to defeat an acquittal motion." State v. Dekowski, 218 N.J. 596, 608 (2014).
Defendant argues the State failed to present evidence that he conspired with Jack and Kenny to commit robbery. According to defendant, all he knew was that Jack promised him "marijuana in exchange for the ride," and that Jack "only disclosed to [defendant] that he intended to rob [Bob] for marijuana while [defendant] was already driving" to the location where the robbery took place. Defendant further argues that he neither agreed to the robbery, nor participated in the taking of marijuana. His arguments are, however, belied by the record.
N.J.S.A. 2C:5-2 provides:
A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
In order to prove conspiracy, proof of "mere knowledge, acquiescence, or approval of the substantive offense, without an agreement to cooperate, is not enough to establish one as a participant in a conspiracy." State v. Abrams, 256 N.J. Super. 390, 401 (App. Div.), certif. denied, 130 N.J. 395 (1992). "There must be intentional participation in the activity with a goal of furthering the common purpose; mere association is inadequate." Ibid.
We conclude from our review that the trial court correctly determined that the State's evidence was sufficient to warrant the denial of defendant's motion. Bob, Carl, Jack, and Jeff all testified that defendant had the weapon used in the robbery, which, according to Bob and Carl, he pointed at Bob's chest. Jack also testified that he told defendant in the car that he "was going to rob [Bob] for some weed," and defendant then waited with Jack and the others in the car, with the lights off, until their victims arrived. This testimony was sufficient to allow a reasonable jury to conclude that defendant intended to give Jack a ride for the purpose of stealing marijuana from Bob, and that defendant used his weapon to help Jack take the marijuana from Bob, satisfying the elements necessary to prove a conspiracy.
We reach the same conclusion with respect to defendant's argument that the State failed to establish a prima facie case of terroristic threats, N.J.S.A. 2C:12-3(a), because "there was no verbal threat by" defendant. To establish "this offense, the State must prove, beyond a reasonable doubt, that defendant: (1) threatened to commit a crime of violence; and (2) he intended to terrorize the victim, or acted in reckless disregard of the risk of doing so." Tindell, supra, 417 N.J. Super. at 553; see also N.J.S.A. 2C:12-3(a). "The communication must be of such a character that a reasonable person would have believed the threat." Tindell, supra, 417 N.J. Super. at 553 (citing State v. Dispoto, 189 N.J. 108, 121 (2007)).
Defendant's contentions are not supported by the record. The evidence adduced by the State demonstrated defendant pointed the gun at his victims and told them to hand over their valuables or he would shoot them. Specifically, Jack testified that defendant cocked his gun and "told [Bob] to give him everything" he had, and Bob testified that defendant told him, "give me all your stuff before I start poppin'." Viewed in its entirety and in a light most favorable to the State, this testimony was sufficient to warrant the denial of defendant's motion for acquittal.
Defendant's remaining challenges to his conviction as expressed in his pro se supplemental brief are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, he offered no factual support or legal basis for any of his arguments.
Finally, we turn to defendant's challenge to his sentence. He argues the sentence on the conviction after the trial was excessive and the court erroneously failed to indicate in the JOCs for the two indictments that the sentences imposed on each were to run concurrently. While the State disagrees with the first contention, it agrees that the JOC for the second indictment should indicate the sentence was to be concurrent.
At sentencing, the trial court considered the aggravating and mitigating factors required under N.J.S.A. 2C:44-1. The court began by addressing defendant's prior criminal history, which included a juvenile delinquency adjudication for burglary and theft by unlawful taking. Based on defendant's prior "history . . . of taking things that don't belong to him" and its finding that there was "a general and specific need to deter" such conduct, the court found that aggravating factors six, N.J.S.A. 2C:44-1(a)(6) (extent and seriousness of prior criminal record), and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence), were applicable, and that mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (lack of prior delinquency or criminal activity), was not. Noting that defendant had an eleven-month-old child, the court found that mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment would cause excessive hardship to defendant or his dependents), was applicable, though was ultimately outweighed by aggravating factors six and nine.
With respect to only the second indictment, the court also found aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (risk of re-offending) applicable because the offenses charged were committed while defendant was out on bail on the first indictment.
In addition to considering the required factors, the court reviewed the facts that guided its decision to impose consecutive sentences on counts one and two. Based on the jury's findings that defendant separately threatened and pointed the gun at each victim, the court found that counts one and two represented distinct robberies "committed against two separate victims." Thus, the court found that,
notwithstanding the fact that these crimes occurred pretty much simultaneously because the victims were standing next to each other, it doesn't justify a concurrent sentence. There are two separate victims here. There were two separate acts of violence committed against each victim. And although the time period and the geographic distance were maybe proximate, I think both
victims are entitled to protection here. And consecutive sentences on Counts 1 and 2 are warranted here when the Court considers the [Yarbough ] factors.
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).
Our review of sentencing determinations is limited and is governed by the "clear abuse of discretion" standard. State v. Roth, 95 N.J. 334, 363 (1984). We are bound to uphold the trial court's sentence, even if we would have reached a different result, unless "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found . . . were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts . . . makes the sentence clearly unreasonable so as to shock the judicial conscience." State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, supra, 95 N.J. at 364-65); see also State v. O'Donnell, 117 N.J. 210, 215-16 (1989).
When sentencing a defendant to consecutive sentences, the court must consider the factors set forth in Yarbough. See Yarbough, supra, 100 N.J. at 643-44. As a sentencing court applies these factors "qualitatively, not quantitatively," it "may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." State v. Carey, 168 N.J. 413, 427-28 (2001); see also, e.g., State v. Molina, 168 N.J. 436, 442 (2001) (finding consecutive sentences were warranted despite the presence of only one Yarbough factor); State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) (holding concurrent sentences were not mandated even though crimes "were connected by a unity of specific purpose, . . . and therefore . . . were somewhat interdependent of one another, and were committed within a short period of time"), certif. denied, 165 N.J. 492 (2000).
While there are no statutorily-defined criteria for imposing consecutive sentences, the Court in Yarbough instructed courts to consider, among other things:
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 . . . are numerous.
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[Ibid.]
Even though the decision lies within the sound discretion of the trial court, it must expressly state the reasons for imposing consecutive sentences or risk remand for resentencing. See State v. Miller, 108 N.J. 112, 122 (1987). However, "where the facts and circumstances leave little doubt as to the propriety of the sentence imposed," and where "there is no showing that the sentence is 'clearly mistaken,'" we may affirm. State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.) (quoting State v. Kromphold, 162 N.J. 345, 355 (2000)) (affirming the trial court's sentence even though the judge did not "carefully articulate" the Yarbough factors), certif. denied, 177 N.J. 492 (2003); see also Molina, supra, 168 N.J. at 442-43 (upholding consecutive sentences in a case involving multiple victims, despite the trial court's failure to state its reasons).
Since the judge's findings of aggravating and mitigating factors were "based upon competent credible evidence in the record," he explained his reason for imposing consecutive sentences, and the sentence imposed falls within the permissible range for the convicted offenses, we have no cause to interfere with defendant's sentence. See Roth, supra, 95 N.J. at 364; Jang, supra, 359 N.J. Super. at 97-98.
However, we remand for amendment of the JOCs on the two indictments to reflect the court's statement that the sentences imposed on each were to run concurrently. See State v. Abril, 444 N.J. Super. 553, 564 (App. Div. 2016) ("In the event of a discrepancy between the court's oral pronouncement of sentence and the sentence described in the judgment of conviction, the sentencing transcript controls and a corrective judgment is to be entered.").
Affirmed in part and remanded in part for amendment of the JOCs to reflect the concurrent sentences imposed on the two indictments. 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