STATE OF NEW JERSEY v. CRAIG B. ARNO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CRAIG B. ARNO,

Defendant-Appellant.

_________________________________________________________

September 15, 2015

Submitted December 3, 2014 Decided

Before Judges Kennedy and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-04-0874.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was convicted following a jury trial of purposeful and knowing murder, kidnapping, felony murder, aggravated arson, robbery and other crimes and was sentenced to an aggregate term of imprisonment of 120 years, subject to eighty-five percent parole disability pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals and raises the following arguments

I. EVAN'S IDENTIFICATION OF THE DEFENDANT WAS THE PRODUCT OF SUCCESSIVE IMPERMISSIBLY SUGGESTIVE PROCEDURES WHICH CULMINATED IN AN UNRELIABLE IDENTIFICATION.

II. THE COURT DENIED SEVERANCE AND ADMITTED THE KMART INCIDENT AS N.J.R.E. 404(B) EVIDENCE BUT FAILED TO INSTRUCT THE JURY ON ITS LIMITED USE. (Not Raised Below).

III. THE COURT FAILED TO INSTRUCT THE JURY ON THE DEFENSE OF THIRD-PARTY GUILT WHICH WAS CLEARLY RAISED AS TO THE MURDER AND RELATED OFFENSES INVOLVING CABALLERO. (Not Raised Below).

IV. THE TRIAL COURT FAILED TO FOLLOW THE MANDATES OF R. 1:8-8(b) AND PROPERLY INSTRUCT THE JURY ON NOTE-TAKING. (Not Raised Below).

V. THE 90 YEAR DISPARITY BETWEEN THE DEFENDANT'S SENTENCE AND THAT OF THE CO-DEFENDANT, WHO SHARED EQUAL GUILT, IS MANIFESTLY UNJUST.

VI. THE CASE MUST BE REMANDED FOR THE COURT TO CONSIDER MERGER AS TO THE FELONY MURDER AND CARJACKING COUNTS, AND TO CORRECT THE JUDGMENT OF CONVICTION TO THE COURT'S SENTENCE. (Not Raised Below).

A. THE COURT FAILED TO MERGE ALL THE APPROPRIATE COUNTS, NAMELY THOSE OF FELONY MURDER AND CARJACKING.

B. THE JUDGMENT OF CONVICTION DOES NOT CONFORM TO THE COURT'S SENTENCE AND MUST BE CORRECTED.

We have considered these arguments in light of the record and applicable law, and we affirm defendant's conviction, but remand to the Law Division to correct and amend the judgment of conviction to reflect required merger of offenses, as well as the fines and penalties assessed; and to accurately identify the offenses for which defendant was convicted.

I.

The facts derived from the record follow.

On May 21, 2010, Martin Caballero and his fiancé, Libia Martinez, drove to Atlantic City to celebrate their youngest daughter's twenty-second birthday. Caballero and Martinez drove in Caballero's white Lincoln MKS and arrived at the Taj Mahal Casino around 10:00 p.m. Caballero dropped Martinez off at the hotel lobby entrance to check into their rooms, while he parked the car in the casino s parking garage. About twenty minutes later, after Martinez checked in, she walked back outside the casino to join Caballero.

However, when Martinez did not see Caballero, she began calling and texting his cell phone, but he did not answer and she could not locate him. At 2:00 a.m., Martinez's son, who was at the family home in Hudson County, called his mother to tell her "that the police had [come] to the house to report that [Caballero's] car had been found, it was on fire." Nine days later, on May 30, 2010, a farmer found Caballero's body in a wooded area in Hamilton Township. The Atlantic County Medical Examiner determined the cause of death was multiple stab wounds to the upper torso.

On May 28, 2010, defendant and co-defendant, Jessica Kisby, were arrested, and subsequently charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2), kidnapping, N.J.S.A. 2C:13-1(b), and other offenses arising from the death of Caballero. On February 14, 2012, Kisby pled guilty to murder, carjacking, theft, and weapon possession offenses in return for a recommended sentence of thirty years. As a condition of the plea bargain, Kisby testified at defendant's trial.

A.

Kisby testified that she and defendant lived together in an apartment in Atlantic City. On the evening of May 21, 2010, they drove to the Taj Mahal Casino in a gray Toyota owned by defendant's grandmother. As they neared the casino, they saw the white Lincoln and followed Caballero as he drove into the hotel garage.

Kisby assumed they were going to rob Caballero, and once he got out of his car, they approached him. Defendant pulled a gun from his waistband and ordered Caballero to get back into his car. Kisby returned to the Toyota, and surveillance tape showed the two vehicles leave the garage. On a nearby side street, Kisby parked the Toyota and got into the Lincoln. Caballero at this point had been moved into the trunk of the Lincoln.

Defendant then drove to an ATM and unsuccessfully attempted to withdraw money with Caballero's bank card. Thereafter, he drove the Lincoln back to the parked Toyota, and Kisby retrieved a thin boning knife from that car and returned to the Lincoln.

According to Kisby, she and defendant did not discuss what they would do next but she, "[f]igured we were going to kill," Caballero. Defendant drove "to some dark road out in Mays Landing," stopped the car, grabbed the knife and opened the trunk. Kisby testified that, "He leaned in the trunk . . . I assumed he started stabbing him and the guy was kicking and kicking and I started slicing at his legs a little bit trying to get him to stop . . . but then I started holding his legs . . . ." Defendant then told Kisby that the knife blade had broken, and Kisby suggested that they could get another knife from her mother's house. Defendant shut the trunk with Caballero inside and drove the Lincoln to Kisby's mother's house.

Defendant waited in the Lincoln while Kisby collected two knives from her mother's house. When she returned, defendant was sitting in the back seat of the Lincoln because he feared Caballero would try to escape from the trunk through the folding back seat. Kisby then drove the Lincoln back to the same wooded area in Mays Landing, and after parking the car, defendant climbed into the trunk with Caballero and stabbed him to death. He then pulled the body out of the trunk and hid it behind some bushes.

Thereafter, Kisby and defendant decided to burn the Lincoln, and after successfully withdrawing $300 from a local ATM with Caballero's bank card,1 they drove to several convenience stores seeking matches and lighter fluid. They eventually obtained a can of gasoline from an Exxon station2 and traveled back to the Toyota, where Kisby then followed defendant in the Lincoln to an exit off the Atlantic City Expressway. Kisby then watched as defendant "poured gas all over the car and lit the car on fire." Defendant also succeeded in lighting himself on fire during this process and, with burns on his hands, chest and face, returned to the Toyota, and Kisby drove them back to their Atlantic City apartment.

Three days later, on May 24, 2010, Kisby and defendant drove to a K-Mart in Pleasantville to purchase medical supplies to treat defendant's burns. Defendant waited in the car while Kisby entered the store. Once inside, Kisby decided to shoplift a tube of antibacterial ointment. K-Mart security immediately detected the theft and dispatched two security guards to intercept Kisby. As they confronted Kisby, defendant entered the store, and put a knife to the back one of the guards. Kisby testified that she and defendant then "ran out and we ended up leaving." K-Mart representatives reported the incident to the police.

Defendant and Kisby slept that night at Kisby's mother's house, and the following day, having seen reports in the media concerning the missing Caballero, they returned to their apartment where they stole a blue van from the apartment's parking garage. However, upon realizing the vehicle was equipped with OnStar navigation, they abandoned the van and took a local jitney to the Atlantic City Bus Terminal. There, they boarded a bus to Pleasantville to meet a friend of Kisby's who drove the couple to the Golden Key Motel in Egg Harbor Township, where Kisby used her drivers' license to check into a room. They planned to stay at the motel until Friday when defendant could pick up his paycheck. Thereafter, Kisby and defendant planned to travel to Philadelphia.

Meanwhile, police were canvasing motels in the Egg Harbor Township area searching for defendant and Kisby. On the morning of May 28, 2010, after discovering Kisby's registration information at the Golden Key Motel, approximately thirteen law enforcement officers converged upon the property and arrested defendant and Kisby.

That day, Cliff Evans, one of the K-Mart security guards who had confronted Kisby for shoplifting, called the Pleasantville police to advise he had seen an internet news story about the arrest of defendant and Kisby, and said they were the same individuals who had escaped from them on May 24. Detective James Searle met with Evans at the K-Mart, and reviewed the surveillance tape. Evans said he was certain that the individuals shown on the news story were the same people he had confronted on May 24.

Defendant elected to testify at his trial and said he played no role in the kidnapping and murder of Caballero. Defendant testified that on the evening of May 21, 2010, Kisby borrowed the Toyota to meet with an unidentified man who allegedly owed her $500. She told defendant she would meet him on the boardwalk around 10:30 p.m. and treat him to dinner. Kisby, however, arrived late, and explained to defendant that she had not been paid and that she needed to go to the man's house. Kisby returned the Toyota to defendant and told him to meet her at her mother's house at midnight. Kisby walked away, presumably to meet the man, and defendant drove the Toyota to the house, where he parked on the street to wait for Kisby.

A few minutes after midnight, Kisby arrived at her mother's house in a Lincoln driven by an unidentified man. Kisby told defendant, who had been waiting in the Toyota, that she needed to retrieve a ring from the house to give to the man, who would then take Kisby to his house to give her the money. During this exchange, defendant did not see the unidentified man or have any interactions with him. At this point, defendant questioned Kisby s story and offered to wait for her at the house. Kisby demurred and asked defendant to meet her in a McDonald's parking lot across the street from a local mall.

Kisby eventually arrived alone driving the Lincoln, and appeared "very upset." Kisby told defendant that she had a problem and needed to dispose of the Lincoln. Defendant testified, "I felt a little protective at that point I guess you could say, and I said get in my car, follow me, we'll go to Atlantic City, I'll drop it off back near the casino and get rid of it and ditch it somewhere and that will be that[.]"

Defendant then drove the Lincoln toward Atlantic City to abandon the car, but along the route, he decided to burn the car, and left the expressway at Pleasantville to buy lighter fluid and matches at a Pathmark store. Kisby went to the Pathmark to buy the supplies, while defendant withdrew money from an ATM with a bank card Kisby had given to him. Upon discovering that the Pathmark was closed, Kisby left the Toyota and rode with defendant in the Lincoln in search of lighter fluid and matches. Eventually, they obtained a can of gasoline from an Exxon station and drove back to the Pathmark to get the Toyota. Traveling in the two cars, defendant wanted to burn the Lincoln in Philadelphia, but Kisby talked defendant into driving to a "random exit" where they burned the car. He added that he had been at home asleep on May 24, and did not go to a K-Mart.

As noted above, Caballero's body was discovered by a local farmer on May 30, 2010.

B.

On March 1, 2012, defendant moved to sever the counts of the Indictment relating to the armed robbery at K-Mart on May 24, 2010. Defense counsel argued that evidence of the K-Mart incident should be excluded as evidence of other crimes under N.J.R.E. 404(b). The judge decided that the evidence could be presented to the jury "with appropriate instruction" requesting that defense counsel prepare a limiting instruction, which counsel never provided.

Additionally, defense counsel moved to suppress Evan s identification of defendant, and the judge held a hearing pursuant to N.J.R.E. 104. Evans, the K-Mart security guard, testified at the suppression hearing that he recognized defendant based on their confrontation outside the store. Evans stopped Kisby on May 24, 2010, and he saw defendant holding the knife. He testified that he was so close to defendant he "[c]ould touch him," adding that he saw defendant's face for "probably 30, 40 seconds." He described defendant as "[a] shorter, slightly overweight male, 40 to 50 years old, scruffy," with bandages on his right hand up to his lower arm.

Evans said that after defendant and Kisby fled the K-Mart, he notified the Pleasantville police and reviewed the store s surveillance footage. Also, shortly after the incident, he saw an online news article with video footage of defendant and Kisby's arrest at the motel. That video showed a handcuffed female being put in the back of a police car and a male sitting handcuffed in front of a motel. He also recognized their Toyota in the video.

At the March 22, 2012, pretrial motion hearing, Detective Searle testified that after the K-Mart security guard called him about the news video, he went to the K-Mart to watch surveillance videos of the incident. Searle said Evans had "no doubt" that the individuals were the same as those shown in the newscast, and he then returned to the police station to draft arrest warrants for defendant and Kisby.

Thereafter, Evans gave a formal, taped statement to Detective Searle, and during the course of this statement, Searle showed Evans individual photos of defendant and Kisby obtained from the Department of Motor Vehicles. Detective Searle testified that he did not show a "lineup" or photo array to Evans contrary to the Attorney General's guidelines on photographic identification, explaining that "[a]fter viewing the footage, [Evans'] familiarity with both individuals, my identification of them, I didn't feel it was necessary."

On March 27, 2012, the trial court denied defendant's motion to suppress. The judge, in acknowledging the failure to follow the proper photo identification guidelines, determined that the identification, while impermissibly suggestive, was nevertheless reliable because prior to identifying defendant in the single photograph, Evans recognized the individuals in the online newscast and voluntarily contacted the police to inform them that he could identify the two people in the video.

II.

Initially, we shall address defendant's argument that the trial court erred in admitting Evans' out-of-court and in-court identifications of defendant. The Supreme Court has explained the standard of review applicable to our consideration of a trial judge's fact-finding on a motion to suppress as follows

[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228, (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from a motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 162 (1964)).

An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161.

An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid.

[State v. Elders, 192 N.J. 224, 243-44 (2007) (third alteration in original).]

Our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010).

Because defendant's identification predated the Supreme Court's decision in State v. Henderson, 208 N.J. 208 (2011), we apply the two factors articulated by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), and adopted by our Supreme Court in State v. Madison, 109 N.J. 223, 232-33 (1988); Henderson, supra, 208 N.J. at 302.

The Manson/Madison factors require the trial judge to determine first whether the identification procedure was impermissibly suggestive. State v. Herrera, 187 N.J. 493, 503 (2006). "[I]mpermissible suggestibility" is present if "'the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist.'" State v. King, 390 N.J. Super. 344, 359 (App. Div. 2007) (emphasis omitted) (quoting Madison, supra, 109 N.J. at 234).

We accord a trial judge's findings regarding the impermissible suggestiveness of the identification procedure "'considerable weight.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973)). "The findings of the trial judge as to reliability of the witnesses are [also] entitled to considerable weight." State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003). The identification may be admitted into evidence as long as "there is sufficient credible evidence in the record to support the findings." Adams, supra, 194 N.J. at 203.

While the State concedes that the showing of the single photograph of defendant to Evans would be considered suggestive, it avers that the identification did not give rise to a "'very substantial likelihood of irreparable misidentification.'" Madison, supra, 109 N.J. at 232 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). To analyze the second prong of the test,

the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence. Ibid.

"Reliability is the linchpin in determining the admissibility of identification testimony . . . ." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. To determine whether there is a "very substantial likelihood of irreparable misidentification," the court must ask "whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer." Adams, supra, 194 N.J. at 203 (quoting Farrow, supra, 61 N.J. at 451). The court must view the reliability of the challenged identification based on the "totality of the circumstances adduced in the particular case." Madison, supra, 109 N.J. at 233 (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 201, 411 (1972)).

Here, the trial judge concluded that Detective Searle's procedure of showing only one photograph of defendant to Evans while at the police station was suggestive. However, as to the second prong, the judge noted that Evans' out-of-court identifications were made before his identification at the police station, and that,

you could say it was a confirmatory identification and not a [sic] initial identification based on police action. That there -- it was merely confirming what he already saw, knew, and related to his boss and related to the police before he went there, . . . .

Additionally, as to whether the identification was made "independently," the judge noted that Evans testified "clearly" that he was "within arm's reach of Ms. Kisby and Mr. Arno that he later identified. He identified that he . . . even though it was a quick encounter, that he was able to identify that Mr. Arno wielded a knife." The judge also noted that Evans' description of defendant as having bandages on his right arm, and the context of the incident bolster the reliability of his identifications.

In our view, the record here amply supports the trial judge's conclusion that Evans' identifications were reliable. Evans had a significant opportunity to identify and recognize defendant in person during the scuffle. When Evans viewed the surveillance tape and news broadcast, he was able to identify defendant's features. Additionally, as the judge noted, Evans' ability to note that defendant was wearing bandages, in addition to the circumstances of his interaction with defendant, bolster the reliability of the identifications. Therefore, the court did not err in admitting the identifications of defendant made by Evans.

We next turn to defendant's argument that the failure of the court to give the jury a limiting instruction on the use of the evidence pertaining to the K-Mart robbery charges when considering the charges pertaining to the homicide, was plain error. Defendant argues the trial court failed to issue a limiting instruction on the use of the evidence admitted under N.J.R.E. 404(b) relating to the robbery at K-Mart. The State argues the court's failure to issue a limiting instruction was not plain error requiring reversal, because of the "overwhelming evidence presented at trial of the defendant's guilt of the robbery, carjacking, kidnapping, and murder of [the victim]."

In the pretrial hearing on the question of whether the K-Mart charges should be severed for trial, the court properly analyzed the evidence under N.J.R.E. 404(b). See State v. Pitts, 116 N.J. 580, 601-02 (1989). Once the court determined that severance would be denied, however, the standard for determining its admissibility in the joint trial was controlled by N.J.R.E. 403, not N.J.R.E. 404(b).

While 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), held that a limiting instruction was required even though the evidence pertained to crimes charged in other counts of the jointly tried indictment, the facts of Krivacska are distinguishable. In that case, separate sexual offenses against two different child victims were charged in a single indictment and tried together, but the separate charges were not continuing acts that constituted a single course of conduct against the same victim. Id. at 11-19. The trial court in Krivacska ruled that evidence of the defendant's sexual assault of each victim was relevant under N.J.R.E. 404(b) as proof of his opportunity to commit the offenses in his private office against the other victim. Krivacska, supra, 341 N.J. Super. at 41.

In this case, the separate crimes were clearly related. The State alleged the murder of Caballero followed by the K-Mart robbery was directly the result of defendant's efforts to avoid detection. As stated in Krivacska, it might have been appropriate to tailor and expand the standard jury charge the trial court gave at the end of the case instructing the jury that the four counts of the indictment must be evaluated separately. See id. at 41-42. In conformity with the model jury charge, the court instructed the jury that each count of the indictment is a separate offense and "defendant is entitled to have each considered separately by the evidence which is relevant and material to that particular charge . . . ." See Model Jury Charge (Criminal), "Criminal Final Charge, Multiple Charges" (2014). Had defense counsel requested a more elaborate instruction tailored to the specific evidence pertaining to the K-Mart robbery, the court would have been well-advised to grant such a requested instruction if worded reasonably. But no such request was made, and the absence of such an instruction did not constitute plain error under Rule 2:10-2 that leads us to reverse defendant's convictions. See Krivacska, supra, 341 N.J. Super. at 42-44.

Defendant next argues it was plain error for the trial judge not to have given the jury a charge on the issue of third-party guilt. Defendant avers that his testimony regarding an unidentified man accompanying Kisby in the white Lincoln was sufficient to suggest third-party guilt requiring a specific instruction. The State argues that defendant failed to suggest that a third party was responsible for the crimes committed against the victim, and therefore, defense counsel properly did not request, and the trial court did not issue an instruction on third-party guilt.

Defendant's version of events included a vague description of a man that supposedly owed money to Kisby, but did not explicitly connect the person to Caballero's murder. While defendant is not required to "provide evidence that substantially proves the guilt of another, but to provide evidence that creates the possibility of reasonable doubt," State v. Cotto, 182 N.J. 316, 333 (2005), mere conjecture is insufficient to establish a third-party guilt defense. Ibid. Here, we agree the alleged third-party guilt is merely conjecture.

Also, if a party fails to challenge a jury instruction during trial, "a plain error standard applies." State v. Nero, supra, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 288-89 (2006)). In the context of a jury charge, plain error means "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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." Ibid. (internal citations and quotation marks omitted). Here, given the evidence that was presented at trial, we find that it was not plain error for the trial judge to have sua sponte given an instruction on the defense of third-party guilt.

We next address defendant's argument that the judge should have merged the felony murder and carjacking counts and the case should be remanded to correct the judgment of conviction to reflect the correct sentence. The State agrees that the convictions for felony murder should be merged with defendant's conviction for purposeful or knowing murder; the State also agrees that defendant's convictions for carjacking should merge with each other.

"In considering the question of merger the polestar is the constitutional principle that no person shall be punished twice for the same act." State v. Stenson, 174 N.J. Super. 402, 405 (Law Div. 1980), aff d, 188 N.J. Super. 361 (App. Div. 1982). New Jersey follows a "flexible approach" to merger,

that requires us to focus on the elements of the crimes and the Legislature's intent in creating them, and on the specific facts of each case. The overall principle guiding merger analysis is that a defendant who has committed one offense cannot be punished as if for two. Convictions for lesser-included offenses, offenses that are a necessary component of the commission of another offense, or offenses that merely offer an alternate basis for punishing the same criminal conduct will merge.

[State v. Hill, 182 N.J. 532, 542 (2005) (quoting State v. Brown, 138 N.J. 481, 561 (1994), overruled on other grounds, State v. Cooper, 151 N.J. 326 (1997)) (internal quotation marks omitted).]

Thus, our Supreme Court declared, "in the context of felony murder considerations, the best course is to simplify the merger determination." Id. at 548. Therefore,

[o]nce defendant ha[s] been convicted of purposeful and knowing murder for the criminal homicide of each victim, his conviction for felony murder [becomes] 'surplusage' because that offense imposes criminal liability for the homicide committed in the course of a felony in the event that intent for the homicide cannot be proved.

[Brown, supra, 138 N.J. at 561.]

Defendant argues that his conviction for purposeful or knowing murder (Count 1) and felony murder predicated on kidnapping (Count 2), carjacking (Count 3), and armed robbery (Count 4) should merge. The State agrees, and asserts that defendant's convictions for felony murder under Counts 2, 3 and 4 of the Indictment should merge with Count 1 for knowing or purposeful murder. We remand for merger of these counts. Count 5 does not merge, however, and must be the subject of a separate sentence.

Additionally, the carjacking convictions under Counts 6 and 7 should merge with each other, as these counts include alternate legal theories under which defendant is liable for the same offense. In light of the legal principles set forth above, we remand for merger of the above counts.

Due to a discrepancy between the sentencing transcript and judgment of conviction, defendant contends the judgment of conviction should be corrected to reflect the transcript's directions. "[W]here there is a conflict between the oral sentence and the written commitment, the former will control if clearly stated and adequately shown, since it is the true source of the sentence. . . ." State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956). According to the transcript, the court merged Counts 5, 10, 12, 18, 20, 22, and 23-28. According to the judgment of conviction, Counts 9, 11, 15, and 19 are also merged. The judgment of conviction incorrectly lists the final charges; for instance, Counts 2, 7, 10 and 12 all incorrectly list conspiracy. Additionally, the trial judge indicated that a chart would be attached to the judgment of conviction reflecting the penalties and fines, but the amounts listed do not match those listed on the judgment of conviction. This must therefore be corrected, as well. Count 5, as we have noted, should not be merged into Count 1.

As to the error regarding the list of final charges, the State agrees that the judgment of conviction should be corrected to reflect the correct list of final charges. In its current form, the list of final charges merely mirrors the list of original charges. Therefore, the judgment of conviction should be amended to list the correct final charges.

Finally, the State agrees that the fines set forth in the judgment of conviction, totaling $1,755, are inconsistent with that in the court-created chart, totaling $2,305.

We agree that the judgment of conviction should be corrected to reflect the assessed fees.

The remainder of defendant's arguments on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We affirm defendant's convictions, but remand for resentencing in light of the court's mistakes in merging certain final charges and to correct the judgment of conviction.

1 A surveillance tape from the bank showed defendant at the ATM on May 22 at 1:00 a.m.

2 A surveillance tape from the station corroborated Kisby's account. The attendant at the station testified that there was blood on the exterior of the Lincoln, and that Kisby stated they had earlier "hit a deer."