STATE OF NEW JERSEY v. RASHOD EATO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0867-06T40867-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHOD EATO,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 14, 2009 - Decided

Before Judges Lisa, Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 06-01-0038 and 05-06-0861.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Rashod Eato appeals from his August 25, 2006 conviction, following a trial by jury, on charges contained in two indictments that were tried back-to-back by the same jury. On Indictment 06-01-0038, defendant was convicted of second-degree conspiracy to commit the crimes of second-degree aggravated assault and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:5-2, 2C:12-1b(1) and 2C:39-4a (count one); second-degree conspiracy to commit the crimes of unlawful possession of a firearm and fourth-degree aggravated assault, N.J.S.A. 2C:5-2, 2C:39-5b and 2C:12-1b(4) (count two); first-degree aggravated manslaughter as a lesser included offense of murder, N.J.S.A. 2C:11-4a (count three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four). On Indictment 05-06-0861, defendant was convicted of second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7b.

The judge sentenced defendant separately on each of the four inchoate crimes that were the object of the conspiracy in the two counts of Indictment 06-01-0038. The judge sentenced defendant to a ten-year term of imprisonment with a five-year parole disqualifier for his conviction on the charge of conspiracy to commit second-degree aggravated assault. The judge imposed an identical sentence for second-degree conspiracy to possess a firearm for an unlawful purpose; five years imprisonment with a two and one-half year term of parole ineligibility for conspiracy to unlawfully possess a weapon; and an eighteen month term of imprisonment with a nine-month parole ineligibility period for conspiracy to commit fourth-degree aggravated assault by pointing a firearm. All four of the conspiracy sentences were ordered to be served concurrently.

On count three of Indictment 06-01-0038, the judge sentenced defendant to a thirty-year term of imprisonment, with an eighty-five percent period of parole ineligibility as required by the No Early Release Act, N.J.S.A. 2C:43-7.2. On count four, the judge imposed a ten-year term of imprisonment with a five-year period of parole ineligibility. Sentences on all counts were ordered to be served concurrently with each other. All other counts were dismissed.

On Indictment 05-06-0861, the judge imposed a ten-year term of imprisonment with a five-year term of parole ineligibility, consecutive to the sentence imposed on Indictment 06-01-0038 and consecutive to the parole violation sentence defendant was then serving.

We reject defendant's contention that the judge erred: by refusing to charge the jury on second-degree passion/provocation manslaughter as a lesser included offense of murder; by charging the jury on conspiracy to commit crimes not identified in the indictment and by including co-conspirators not named in the indictment; by denying defendant's motions for acquittal or for a new trial on the conspiracy counts; by permitting a State's witness to testify in shackles; and by imposing an excessive sentence. We agree, however, with defendant's contention that the conspiracy counts should have been merged with the related substantive offenses, and remand for the entry of an amended judgment of conviction to accomplish that result. In all other respects, we affirm defendant's conviction and sentence.

I.

On March 22, 2005, David Sanders and Nadirah Robinson lived together with their two children on Reservoir Avenue in New Brunswick. The two had been romantically involved for eight years. Nadirah knew defendant Rashod Eato from high school, and had dated him years earlier. Through defendant's friendship with Nadirah, defendant also knew her younger brother, Yasin, who was eighteen years old in March 2005.

On the night of March 22, 2005, at approximately 8:00 p.m., Shawn Hall observed a loud argument between defendant and Sanders. Hall had known defendant all his life, and Sanders for four or five years. He described his relationship with defendant as "a lot better than he and Dave['s] relationship." According to Hall, defendant told Sanders that he "f---ed the girl," meaning "Dave's girlfriend, Nadirah." After defendant made that remark, Sanders told defendant he was "going to f--- [him] up." According to Hall, Sanders made that threat numerous times. Hall also testified that Sanders told defendant he was not tough enough to fight back.

Hall did not see either defendant or Sanders produce a weapon during that incident, which he described as having occurred on Pine Street. Hall also testified that defendant's cousin Brian Butler was present. While the argument between Sanders and defendant was in progress, Nadirah drove up and pled with Sanders to leave because defendant was trying to provoke him. Eventually, Sanders left the scene with Nadirah.

Sanders's sister Viola also was present during the time her brother was arguing with defendant. She was standing next to defendant and was able to hear him make a call from his cell phone to co-conspirator Thomas Yates. According to Viola, defendant told Yates that David Sanders was "wildin" and that Yates should "bring them things." Although defendant did not use the word "gun," Viola knew he was referring to a gun because she "h[u]ng around them all the time." When the prosecutor asked her whether it was merely an "assumption on her part that defendant's reference to 'bring them things'" meant a gun, she answered "no, I knew for a fact what it meant."

After defendant and Sanders had already left Pine Street, Viola continued to walk back to her brother's and Nadirah's apartment on Reservoir Avenue. While walking, she saw her brother Yasin walking up the street in the direction of defendant, Butler, co-conspirator Alkawon James, and Yates. Viola was able to see Yasin exchange some words with defendant and his group, although she could not hear what was said. She did see, however, that defendant took a gun from his cousin Brian Butler. As soon as defendant did so, Yasin immediately put his hands up. Viola heard gunshots ring out.

Although Viola was not able to see who fired first, she was able to determine that defendant and Yasin both fired shots. She was also able to determine that the gun defendant used was silver in color and that it was defendant, rather than one of the others in the group, who shot Yasin. Defendant survived his wounds; Yasin did not.

Sanders was not the only witness to place defendant at the scene of the shooting. The State also presented Ikeem Higgins, defendant's cousin, who was at that time, according to his testimony, incarcerated and awaiting trial on a drug distribution charge. Higgins testified that on the night in question he was visiting his sister and brother-in-law. When the sounds of gunfire erupted outside the window, the three peered out and saw defendant lying on the ground. While defendant was on the ground, Higgins saw a man, presumably Butler, reach under a nearby vehicle, remove a gun, and start firing.

After the shootings, detectives searched the area of Reservoir Avenue and found shell casings from .380 caliber and nine millimeter handguns. When the medical examiner conducted an autopsy on Robinson, a loaded .380 magazine was located in the left pocket of his sweatshirt. A ballistics analysis revealed that all of the .380 caliber shell casings were fired out of only one gun, as were the nine millimeter casings.

After defendant was apprehended, he provided a statement to police in which he claimed that as he and Butler walked down Reservoir Avenue, he saw a young black man, about eighteen to nineteen years old, approaching him from the other end of the street. Defendant claimed that he heard three gunshots and one of the bullets nearly hit him in the foot. Defendant also denied having a gun in his possession on the night Robinson was murdered, and maintained that he came to Reservoir Avenue only to visit with family. He did, however, admit during the interview that he went to Reservoir Avenue to "shoot a fair one," which he described as a fair fight.

After the State rested, defendant moved for a judgment of acquittal on the conspiracy counts. He contended there was insufficient evidence to demonstrate that he had entered into an agreement with others to commit the crime of assault and the weapons-related offenses. He asserted that because the victim, Yasin Robinson, was not involved in the original altercation at the park near Pine Street, there could be no conspiracy to murder Robinson and no intent to kill him.

The judge denied defendant's motion for acquittal, reasoning that when the evidence was viewed in the light most favorable to the State, as State v. Reyes required, the evidence was sufficient to demonstrate that defendant conspired with others to commit the crimes specified in counts one and two of the indictment.

During the charge conference, the judge agreed to charge the jury on self-defense. Defendant also asked for a jury instruction on passion/provocation manslaughter, arguing that there was a "confrontation" during which Robinson "was waving his hand and so forth and so on." Defense counsel maintained that Robinson's use of a gun was the provocation that entitled defendant to such a jury instruction. After considering the arguments from both sides, the judge advised the parties that he would not charge the jury on passion/provocation manslaughter because it "was not in this case . . . in any way, shape or form."

On appeal, defendant raises the following claims:

I. THE TRIAL COURT SHOULD HAVE CHARGED PASSION/PROVOCATION MANSLAUGHTER (raised below).

II. THE JURY CHARGE ON VICARIOUS LIABILITY WAS IMPROPER AND UNFAIRLY PREJUDICED DEFENDANT (not raised below).

III. THE COURT SHOULD HAVE GRANTED DEFENDANT'S MOTIONS FOR ACQUITTAL OR FOR NEW TRIAL ON THE CONSPIRACY CHARGES (raised below).

IV. EVEN IF VALID, DEFENDANT'S CONSPIRACY CONVICTIONS CONSTITUTED A SINGLE CRIME, NOT MULTIPLE ONES, AND THEY SHOULD HAVE MERGED WITH THE AGGRAVATED MANSLAUGHTER AND WEAPONS OFFENSES (plain error).

V. THE APPEARANCE OF A STATE WITNESS AGAINST DEFENDANT IN SHACKLES PREJUDICED DEFENDANT AND REQUIRES REVERSAL (plain error).

VI. DEFENDANT'S SENTENCE IS EXCESSIVE.

II.

We turn first to Point I, in which defendant argues that the court's refusal to charge passion/provocation manslaughter denied him a fair trial. In particular, he asserts:

[V]iewing the evidence in the light most favorable to defendant, the jury could have found that defendant was initially "ambushed" . . . by the gunshots fired at him on Reservoir Avenue, or at least there was mutual combat, since several witnesses confirmed that [Yasin] Robinson possessed a gun and was firing it toward defendant just moments before he was killed. The initial altercation with Sanders, [the victim's] friend, only one-half hour before, which (according to the evidence viewed in the light most favorable to the defendant) also included a threat with a gun against defendant, also contributed to establishing adequate provocation. . . .

Courts have also held that mutual combat warrants a passion/provocation charge where it is waged on equal terms . . . Here both defendant and decedent possessed guns.

A defendant "is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 887, 99 L. Ed. 2d 54, 61 (1988).

Passion/provocation manslaughter is established when a homicide that would otherwise constitute murder under N.J.S.A. 2C:11-3 is "committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). The offense has four elements: (1) the provocation must be adequate; (2) the defendant must not have had time to "cool off" between the provocation and the killing; (3) the provocation must have actually impassioned the defendant; and (4) the defendant must not have cooled off before the killing. State v. Mauricio, 117 N.J. 402, 411 (1990). The first two elements are objective; and the other two are subjective. Ibid. If the killing does not include all four elements, passion/provocation manslaughter cannot be demonstrated and should not be charged. Ibid.

The applicable standard for determining whether the trial court should charge the jury on a lesser included offense such as passion/provocation manslaughter is set forth in N.J.S.A. 2C:1-8(e), which provides that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." When making that decision, the judge is obliged to view the evidence in the light most favorable to the defendant. Mauricio, supra, 117 N.J. at 412. If the court finds that the evidence provides a rational basis to support the two objective elements of passion/provocation manslaughter, the two subjective elements should "almost always be left for the jury." Id. at 412-13.

As to the first element, "[t]he question of whether the provocation is adequate essentially amounts to whether loss of self-control is a reasonable reaction." Id. at 412. If the jury could not rationally conclude that the State failed to prove beyond a reasonable doubt that "the asserted provocation was insufficient to inflame the passions of a reasonable person, the trial court should withhold the charge." Ibid.

Here, the judge correctly denied defendant's request for a passion/provocation jury instruction. Nothing in the record satisfies the required first element of proof demonstrating a provocation sufficient to cause defendant to lose self-control. Even when viewed in the light most favorable to defendant, the evidence presented at trial does not establish that Yasin threatened defendant with a gun. Viola Sanders testified that she saw defendant and three other men meet Yasin on Reservoir Avenue, at which time words were exchanged. Defendant took the gun from Butler. In response, Yasin "basically threw his hands up." Immediately afterward, defendant and Yasin started shooting at each other.

Defendant's own statement to police makes no mention of any threatening gestures or comments made by Yasin. Defendant merely told police that he observed a young black male walking toward him, and that as the individual walked by, he heard gunshots. The record is entirely devoid of any evidence of Yasin having provoked defendant.

Nor could the earlier verbal altercation on Pine Street between defendant and Sanders satisfy the first element of the passion/provocation manslaughter test. That incident involved only defendant and Sanders, and Yasin was not even present. Moreover, even if Sanders's insulting words to defendant on Pine Street (when he accused defendant of not being tough enough to fight), could somehow be imputed to Yasin, by the time defendant saw Sanders and Yasin approaching him on Reservoir Avenue, thirty minutes had elapsed. That thirty-minute interval provided ample time for defendant to "cool off" following the argument.

Like the trial judge, we conclude that the objective elements of passion/provocation manslaughter were plainly missing in this case. It bears repeating that the judge did charge the jury on self-defense. Therefore, the jurors understood that if they were to conclude that Yasin pulled a gun on defendant and began to fire, defendant was entitled to respond in kind. Thus, the passion/provocation jury charge, had it been given, would have addressed only some unspecified earlier conduct, none of which was present in this record. We thus affirm the judge's denial of defendant's request for a passion/provocation manslaughter instruction.

III.

In Point II, defendant argues that the jury charge on vicarious liability, as it pertained to the conspiracy counts, was improper and prejudicial. During his charge to the jury, the judge explained that the State alleged defendant committed the crimes of murder and the related weapons offenses by himself as a principal. The judge then instructed the jury that the State alleged, in the alternative, that defendant was legally accountable for those crimes, namely murder, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose, if such crimes were committed by "Brian Butler and/or Thomas Yates and/or Alkawon James" because defendant was "alleged to have conspired [with them] to commit these crimes."

Defendant takes issue with the jury charge because the conspiracy alleged in the indictment was between defendant, Sanders, and Butler. Yates and James were not named as con-conspirators. Defendant asserts there was insufficient evidence to permit the jury to conclude that one of the latter two individuals conspired to shoot and kill Yasin Robinson. Defendant further argues that the indictment charged him with only conspiracy to commit aggravated assault, to possess a firearm for an unlawful purpose, to unlawfully possess a firearm, and to commit aggravated assault, and not with conspiracy to commit murder.

Because defendant did not object to the charge at the time it was given, we will disregard any error unless it was clearly capable of producing an unjust result. R. 2:10-2. N.J.S.A. 2C:2-6(a) specifies that a person is guilty of an offense "if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both." The statute further provides that a defendant is legally accountable for the conduct of another person when "[h]e is engaged in a conspiracy with such other person." N.J.S.A. 2C:2-6(b)(4). We reject defendant's claim that the judge's jury instruction on conspiracy improperly included conspiracy to commit murder even though the indictment did not charge him with such an offense. Defendant's argument ignores the Court's holding in State v. Bridges, 133 N.J. 447, 466-67 (1993), that "a co-conspirator may be liable for the commission of substantive criminal acts that are not within the scope of the conspiracy if they are reasonably foreseeable as the necessary or natural consequences of the conspiracy." So long as the crime in question is "objectively foreseeable" in light of the "obvious risks surrounding the attempts to execute the conspiracy," the defendant is liable for that other crime. Id. at 467.

Here, the indictment charged defendant with conspiracy to commit aggravated assault, to possess a firearm for an unlawful purpose, to possess a firearm unlawfully, and to commit an aggravated assault by pointing a firearm. It is certainly not unreasonable to conclude that a person who conspires to possess a firearm, to point it at another and to inflict serious bodily injury should reasonably anticipate that in the course of such conduct someone might be killed. Unquestionably, a homicide is "objectively foreseeable" and "reasonably to be anticipated" as the natural consequence of the conspiracy actually charged in the indictment. Thus, in light of Bridges, we reject defendant's contention that including the offense of conspiracy to commit murder in the jury instructions on conspiracy deprived him of a fair trial.

We turn to defendant's claim that the judge's reference to Yates and James in his jury instruction on conspiracy was unfairly prejudicial because neither of them was named in the indictment. The indictment specifies that defendant conspired with Sanders, Butler "and other diverse individuals." Thus, the language in the indictment clearly put defendant on notice that the State was charging him with conspiring with individuals other than Sanders and Butler. The reference to Yates and James in the jury charge was thus consistent with the "other diverse individuals" language in the indictment. Moreover, as we discuss below during our analysis of defendant's Point III, there was ample evidence in the record to warrant a conclusion that both James and Yates were involved in the conspiracy. We thus reject as meritless defendant's claim in Point II that the jury charge on conspiracy was flawed.

IV.

In Point III, defendant asserts that the court erred when it denied his motions for acquittal or for a new trial on the conspiracy counts (counts one and two). At the close of the State's case, a trial court is obliged to grant a motion for a judgment of acquittal on one or more offenses charged in the indictment if the evidence is insufficient to warrant conviction. R. 3:18-1. The trial judge must determine

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

Moreover, a trial judge may grant a defendant a new trial if required in the interest of justice. R. 3:20-1. The court shall not "set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." Ibid.

N.J.S.A. 2C:5-2(a) specifies that a person is guilty of conspiring to commit a crime with another person or persons if "with the purpose of promoting or facilitating its commission" he or she:

(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.

"Because the conduct and words of co-conspirators is generally shrouded in 'silence, furtiveness and secrecy,' the conspiracy may be proven circumstantially." State v. Samuels, 189 N.J. 236, 246 (2007) (quoting State v. Phelps, 96 N.J. 500, 509 (1984)).

When the evidence in the record is viewed in the light most favorable to the State, as required by Reyes, supra, 50 N.J. at 458-59, it is beyond dispute that the judge correctly denied defendant's motion for acquittal. Through the testimony of Viola Sanders, the State presented proof that as soon as defendant's argument with David Sanders had concluded, defendant called Yates and told him to bring a gun to the scene. A short while later, Yates arrived, after which a group of people that included defendant, James, Yates and Butler, encountered Yasin Robinson. As Robinson put his hands up in the air, defendant took a gun from Butler and the shooting began. When defendant was wounded, the gun dropped from his hand and slid under a car. Butler picked it up and continued to fire at Robinson. Thus, in light of defendant's call to Yates instructing Yates to bring the guns, and defendant and his three cohorts walking toward Robinson where the gunfire erupted, ample circumstantial evidence supports the conclusion that defendant entered into an agreement with the others to unlawfully possess weapons for the purpose of taking a life. We thus reject the claim defendant advances in Point III.

V.

In Point IV, defendant argues, and the State concedes, that the judge erred in imposing separate sentences for each of the four conspiratorial objectives specified in counts one and two of the indictment. The State also agrees that defendant's conspiracy convictions should have been merged with the aggravated manslaughter conviction.

Pursuant to N.J.S.A. 2C:1-8(a)(2), a defendant may not be convicted of more than one offense if "[o]ne offense consists only of a conspiracy or other form of preparation to commit the other." Consequently, "[a] conviction of the completed offense will adequately deal with the conduct." State v. Hardison, 99 N.J. 379, 386 (1985). Cumulative sentences are permitted only when the conspiracy had "objectives beyond any particular offense committed in pursuance of its goals." Ibid. In other words, "when the preliminary agreement does not go beyond the consummation, double conviction and sentence is barred by N.J.S.A. 2C:1-8(a)(2)." Ibid.

In light of the provisions of N.J.S.A. 2C:1-8(a)(2) and the Court's holding in Hardison, defendant's conspiracy convictions should have been merged with the conviction for aggravated manslaughter. We accordingly remand for the amendment of the judgment of conviction.

VI.

In Point V, defendant maintains that the shackling of a witness for the State, Ikeem Higgins, created unfair prejudice that entitles him to a fair trial. At the time defendant's trial was conducted, the Court had not yet decided State v. Kuchera, 198 N.J. 482 (2009). There, the Court held that witnesses for the State should not be permitted to testify in restraints unless such restraints are necessary to maintain courtroom security. Id. at 487. Thus, there is no per se prohibition on the shackling of a State's witness provided that the judge makes detailed findings justifying their use. Id. at 496-97.

Here, Higgins was sworn and placed into the witness box before the jury entered the courtroom; and the jury was excused for a mid-morning break before Higgins stepped down from the witness stand once his testimony concluded. Under those circumstances, the jury was not aware that Higgins was wearing leg shackles. Defendant does not argue to the contrary. Thus, because the shackling was not visible to the jury, no Kuchera violation occurred. We thus reject the claim defendant advances in Point V.

VII.

Last, in Point VI, defendant maintains that his sentence is excessive. Our review of sentencing decisions is deferential. We will modify a sentence only when the sentencing court's "application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). We must also determine whether the aggravating factors found by the judge were based upon credible evidence in the record, ibid., and whether the judge gave defendant credit for all mitigating factors that were present, State v. Dalziel, 182 N.J. 494, 504-05 (2005).

Defendant confines his sentencing argument to two claims: there was no basis for the court's finding of aggravating factor five, namely, that defendant was involved in organized criminal activity; and the judge should not have rejected as a mitigating factor defendant's claim that he was relatively young at the time these offenses were committed. As to the former, the judge explained that his finding of aggravating factor five was based upon the fact that the events that led to Yasin Robinson's death were the product of a group effort, namely defendant walked to Reservoir Avenue with a group where he was handed the gun that was used to kill Yasin. The judge specifically commented that he gave little weight to this aggravating factor. The facts upon which the judge relied to find the existence of aggravating factor five were clearly present in the record. We have no cause to disagree with the judge's finding.

As to defendant's claim that he was entitled to mitigation because he was only twenty-three years old at the time he committed these crimes, the judge rejected this potential mitigating factor because of the extent of defendant's criminal record. In particular, defendant was adjudicated delinquent in 1997 for unlawful possession of a firearm and possession of CDS. Later that year, he was adjudicated delinquent for hindering apprehension. His juvenile record also includes a violation of probation, and defendant was on juvenile parole at the time he was arrested for these offenses.

As an adult, defendant was convicted in 1999 of third-degree drug distribution, an offense for which he had been waived to the Law Division from the Family Part. In August 2000, defendant was again found guilty of drug distribution; he incurred an additional conviction on the same date for bail jumping. In light of defendant's extensive criminal record, we are satisfied that the judge did not err when he concluded that defendant was not entitled to the benefit of that mitigating factor. We thus reject defendant's claim that his sentence was excessive.

VIII.

We do, however, as we have already observed, remand the sentence for the entry of an amended judgment of conviction to merge the conspiracy counts (counts one and two), with the aggravated manslaughter conviction in count three. All fines and penalties applicable to the conspiracy counts must be vacated.

The judge is also directed to correct a typographical error in the judgment of conviction. At the time of sentencing, the judge imposed a thirty-year sentence, subject to NERA, for the aggravated manslaughter conviction, yet the written judgment of conviction erroneously specifies that the sentence for that crime is thirty years imprisonment with five years of parole ineligibility. This too must be corrected on remand.

Additionally, on page three, count two is incorrectly specified as "homicide, first-degree, N.J.S.A. 2C:11-4a." In fact, count two was one of the conspiracy counts. Thus, the judge should correct the third page of the JOC so that the counts are listed in a manner that is consistent with the indictment and the jury's verdict.

IX.

Defendant's conviction is affirmed. Remanded for the entry of an amended JOC to merge the conspiracy counts with the aggravated manslaughter count and to correct the errors to which we have referred.

Affirmed as modified, and remanded.

50 N.J. 454 (1967).

Although the prosecutor asked Viola Sanders to demonstrate what Yasin had done, and she complied, neither the judge nor either of the attorneys summarized that demonstration on the record.

N.J.S.A. 2C:44-1(a)(5).

When there is a discrepancy between the oral imposition of sentence and the sentence that is reflected on the written judgment of conviction, it is the former that controls. State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956).

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A-0867-06T4

January 7, 2010