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State v. Smith


October 17, 2007


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-03-0226.

Per curiam.


Submitted September 17, 2007

Before Judges Weissbard, Gilroy and Baxter.

Tried to a jury, defendant was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35- 5(b)(3) (count two); third-degree possession of CDS with the intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count nine); second-degree possession of a weapon while committing a narcotics offense, N.J.S.A. 2C:39-4.1 (count ten); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count eleven); and second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7 (count twelve). The jury acquitted defendant on counts four, five and six, which charged fourth-degree aggravated assault by pointing a firearm, and two counts of third-degree assault on a police officer.

At sentencing, the judge granted the State's motion to sentence defendant to a mandatory extended term as a prior Graves Act offender pursuant to N.J.S.A. 2C:43-6(c), and as a prior drug distribution offender pursuant to N.J.S.A. 2C:43-6(f). After merging counts one and two with count three, the court sentenced defendant as follows: on count three, to a ten-year term of imprisonment, with a five-year parole ineligibility term; on count seven, to a five-year term of imprisonment, to run concurrent with the sentence on count three; on count eight, to a twenty-year term of imprisonment, of which half was ordered to be served without parole eligibility, concurrent to the sentence imposed on count three; on count nine, to a five-year term of imprisonment, concurrent with count eight; on count ten, to a ten-year term of imprisonment, with a five-year parole ineligibility term, concurrent to the sentence on counts eight and nine, but consecutive to the sentence on count three; on count eleven, to eighteen months imprisonment, concurrent to the sentence on counts eight, nine and ten, but consecutive to the sentence on count three; and on count twelve to a ten-year term of imprisonment, consecutive to the sentence on the other counts, but concurrent to a parole violation sentence defendant was serving at the time of sentencing. The aggregate sentence imposed totaled forty years imprisonment, with a fifteen-year parole ineligibility term.

On appeal, defendant presents the following claims:




A. The Trial Court Failed to Define the Element of Physical Force or Violence in its Instruction on Resisting Arrest.

B. The Trial Court Omitted the Element of Knowledge of Defacement in its Instruction on Possession of a Defaced Firearm.

C. The Court Erred in Giving the Jury a Charge on Identification Where Identity Was Not An Issue.


A. The Prosecutor Vouched for the Credibility of His Witnesses and Misstated the Law.

B. The Prosecutor Shifted the Burden of Proof.

C. The Prosecutor Misquoted the Facts.

D. The Prosecutor Disparaged Defense Counsel.


A. The Number and Length of the Consecutive Sentences Violates State v. Yarbough.

B. The Sentences Must Be Remanded pursuant to State v. Natale and State v. Thomas.

C. The Court Apparently Imposed Maximum Terms Because There Were No Mitigating Factors and the Court's Sentence was Affected by the Proliferation of Drug Dealers who Threaten Law Enforcement Officials with Firearms.

With the exception of the claims defendant asserts in Points V-A and V-B, his contentions lack merit. We affirm defendant's conviction, but remand for resentencing.


On October 6, 2002, at approximately 1:00 a.m., Sergeant Stanley Rodriguez and Officer Felix Arroyo of the Paterson Police Department were on routine patrol on River Street driving in an unmarked police vehicle. A red bubble light on the dashboard was the only feature that could possibly identify it as a police vehicle. While driving, Rodriguez observed what he believed to be a narcotics transaction. He observed an unidentified male hand paper that Rodriguez believed was paper currency to another man, whom Rodriguez identified at trial as defendant. Rodriguez then saw defendant hand the man a small object.

After observing that exchange, Rodriguez and Arroyo stopped their vehicle and exited. Rodriguez, dressed in plain clothes but wearing a police badge around his neck, ordered both men to stop. Neither obeyed. Defendant dropped a small plastic bag on the ground, and began walking down River Street toward Fifth Avenue; the other man began walking up Sixth Avenue. Rodriguez retrieved the plastic bag and found inside it what he believed was crack cocaine. After Rodriguez advised Arroyo that he had recovered drugs, Arroyo immediately ordered defendant to stop. Defendant fled.

During the ensuing foot chase, Rodriguez saw defendant reach into his waistband and pull out a handgun. Rodriguez drew his service revolver, and while pointing it at defendant, he repeatedly told defendant to drop his weapon. Rodriguez was able to apprehend defendant and tackle him to the ground. Rodriguez testified that defendant struggled to avoid arrest by flailing his arms and legs.

During that struggle, defendant's gun slid under a white van parked near by. Arroyo located and retrieved the gun, which was a .380 caliber semi-automatic weapon with one round in the chamber. The serial number had been scratched off the weapon.

The State produced evidence demonstrating that at the time of arrest, defendant was within 1000 feet of a school.

Defendant testified on his own behalf and denied all of the allegations against him, including having a gun or narcotics in his possession, threatening police officers with a gun, engaging in a hand-to-hand drug sale, and struggling with Rodriguez at the time of arrest. Defendant admitted that he fled upon seeing the police vehicle, but explained he did so only because he feared he would be arrested for warrants for unpaid parking tickets. Defendant testified that he was not tackled by police, but instead tripped onto the ground.

During his testimony, defendant acknowledged that he had been convicted of a first-degree crime in 1995, for which he was sentenced to a fifteen-year term of imprisonment, with five years before parole eligibility. He also acknowledged that in 1995, he was also convicted of a third-degree crime for which he received a five-year sentence, with eighteen months of parole ineligibility.

Defendant's cousin, Michael Brown, testified that he and defendant were walking on River Street when they saw a police car rapidly approach them and park. After one officer jumped out of the unmarked car, Brown saw his cousin run up the street. Brown testified he did not know why defendant ran, but believed it was because he was on parole. Brown watched as the officer chased defendant across the street, and he saw defendant turn around and run back toward Brown and Miguel Chappell. Brown did not see anything in defendant's hand and testified that defendant was not carrying a gun while running. According to Brown, the officer did not tackle defendant. Instead, defendant tripped and fell to the ground about seven feet from where Brown was standing. Before he hit the ground, defendant did not have a gun or any silver object in his hand.

Brown also testified that at no time while he was with defendant in the two hours before the police vehicle approached, did defendant sell drugs. Brown stated that he, defendant and Chappell were merely standing in the general area of River Street near Sixth Avenue in the minutes before police approached. Brown testified that defendant did not drop a bag of cocaine. Chappell's testimony corroborated that of Brown.


In Point I, defendant argues that the prosecutor structured his cross-examination of defendant to tell the jury that defendant did not make a statement to police at the time of his arrest. Defendant contends that by doing so, the prosecutor's actions denied him a fair trial. In particular, defendant points to the following exchange, which took place during the State's cross-examination of him:

Q: What were you being charged with? You're being charged with drugs, possessing them with the intent to sell them and possession of a handgun?

A: Yes.

Q: Did you at any time say to them, hey, man, what are you talking about --


THE COURT: I'll sustain the objection. Ladies and gentlemen, you'll disregard that question. Please step into the jury room. . . .

We need not decide whether the prosecutor's cross-examination ran afoul of State v. Muhammad, 182 N.J. 551, 567 (2005), in which the Court held that the State may not cross-examine a defendant about his failure to have made an exculpatory statement to police. Here, we are satisfied that the Court promptly instructed the jury to disregard the question. If a trial judge orders the jury to disregard a question, we assume that the jury followed the judge's instruction and that any prejudice that may have been caused by the comment has been eliminated. State v. Farrell, 61 N.J. 99, 107 (1972).

In addition to instructing the jury to disregard the question, the judge also explained in his final charge that "[a]ny testimony that I may have had the occasion to strike is not evidence and should not enter into your deliberations. It must be disregarded by you." Under these circumstances, we are confident that the judge's immediate and forceful response negated any prejudice that might otherwise have arisen. For these reasons, we reject defendant's contentions in Point I.


In Point II, defendant argues that the trial court erred when it denied his motion for a mistrial after a defense witness commented during cross-examination that defendant was on parole at the time of the instant offense. The following testimony was elicited during cross-examination of defense witness Michael Brown:

Q: But either way when the police officers came up on the scene your first cousin took off running; correct, that's what you told us?

A: Yes, sir, that's what I told you.

Q: Yes, okay. And you told us that you don't know why.

A: Yeah.

Q: Correct? Sir, to this day you don't know why your first cousin took off running when the --

[DEFENSE COUNSEL]: Objection -

Q: -- police came up to the scene?

[DEFENSE COUNSEL]: -- relevance.

THE COURT: No, I'll permit it.

A: Nope.


Q: To this day you still don't know why your first cousin took off running?

A: Well, I don't know -- I believe because he was on parole --

[DEFENSE COUNSEL]: Objection, speculation.

THE COURT: Strike the answer. It's non-responsive to the question.

[PROSECUTOR]: I'll move on, Judge.


Q: He goes off --

THE COURT: The jury will disregard the last answer.

Defendant argues that the prosecutor's question constituted the introduction of other crimes evidence that did not satisfy the four-part test established in State v. Cofield, 127 N.J. 328 (1992), and had not been the subject of a N.J.R.E. 104(a) hearing outside the presence of the jury. For several reasons, we disagree that such a hearing was required.

First, as the judge properly concluded, Brown's remark "wasn't occasioned by any conduct by the prosecutor . . . wasn't responsive to the question[,] [a]nd it was purely volunteered by the witness." Stated differently, the prosecutor could not have anticipated that Brown would have given that answer when the prosecutor asked why defendant was running. Accordingly, we reject defendant's argument that the question represented a conscious effort by the State to elicit information of defendant's prior conviction.

Second, the judge promptly instructed the jury to disregard Brown's remark about defendant being on parole. The jury is presumed to have followed that instruction. State v. Muhammad, 145 N.J. 23, 52 (1996).

Third, we defer to the judge's conclusion that Brown was mumbling and speaking so softly at the time he made the remark that it was unlikely the jury heard it in any event. Fourth, during his direct testimony, defendant acknowledged, as we have already explained, that he was sentenced in 1995 to a fifteen-year term of imprisonment, with five years to be served without eligibility for parole. The judge later explained to the jury that the evidence of defendant's prior conviction could only be used to assist the jury in evaluating defendant's credibility. In light of the lengthy sentence defendant received in 1995, it does not strike us as unreasonable that the jury would have concluded that defendant might still have been on parole on October 6, 2002, which was only seven years later. Because the jury might well have assumed that defendant would be on parole in 2002, we conclude that little, if any, prejudice resulted from Brown's off-hand remark.

Even though the judge directed the jury to disregard Brown's comment that defendant might have been on parole at the time he ran from police, defense counsel moved for a mistrial, which the court denied. In situations such as this, where a witness blurts out inadmissible evidence, the trial judge must determine whether the "inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial." State v. Winter, 96 N.J. 640, 647 (1984). The trial court's decision to grant or deny a motion for a mistrial is a discretionary determination, warranting great deference. Ibid.

Here, the following factors lead us to conclude that the judge acted well within his discretion when he denied the motion for a mistrial: the judge's instruction to the jury that the comment should be disregarded; the judge's later instruction that defendant's convictions were admissible only to assist the jury in evaluating credibility; the prosecutor's inability to predict that Brown would have given such an answer; and the testimony that defendant was sentenced in 1995 to a fifteen-year term of imprisonment. If there was any prejudice to defendant from Brown's remark, it was clearly capable of being cured by the judge's instruction to disregard the remark. The denial of defendant's motion for a mistrial did not constitute a misapplication of the judge's discretion.


In Point III, defendant argues that the jury charge was deficient in a number of respects, and therefore denied him the right to a fair trial. First, defendant argues that the jury charge on resisting arrest was deficient because the judge failed to define the terms "physical force or violence." The terms "physical force or violence" are given their ordinary meaning. State v. Brannon, 178 N.J. 500, 510-11 (2004). Accordingly, it was not necessary for the judge to give the jury a special definition. Ibid.

Defendant next argues that the judge erred in giving the jury an instruction on identification. Because defendant failed to object to that charge at trial, we evaluate his contentions on appeal under the plain error standard of Rule 2:10-2. We will disregard any such error unless it was "clearly capable of producing an unjust result." Ibid. We agree with the State that here, where defendant was identified by police officers in court as the person who engaged in a drug transaction and pointed a weapon, and where defendant and his two witnesses testified that except for fleeing, defendant had done none of those things, the judge properly instructed the jury that it was the State's burden to prove that the crime, if committed at all, was committed by defendant. State v. Walker, 322 N.J. Super. 535, 540 (App. Div.) certif. denied, 162 N.J. 487 (1999).

Defendant additionally argues that the identification charge prejudiced him because such charge would lead the jury to expect defendant to present evidence that someone else had possessed the drugs and gun. That contention lacks merit. The judge's instruction plainly told the jury otherwise. In the identification charge, the judge instructed the jury that "[t]he defendant has neither the burden nor the duty to show that the crime, if it was committed at all, was committed by someone else or to prove the identity of that person." Under these circumstances, the identification charge was not error.

Defendant's final argument concerning the jury charge pertains to the judge's instruction concerning count eleven, which charged defendant with possession of a defaced firearm in violation of N.J.S.A. 2C:39-3(d). The statute makes it a crime for "[a]ny person [to] knowingly ha[ve] in his possession any firearm which has been defaced . . . ." In his charge to the jury, the judge explained that the State was required to prove three elements beyond a reasonable doubt: that there was an item in evidence which was a firearm; that the firearm was defaced; and that the defendant knowingly possessed it on October 6, 2002. Defendant argues that it was error for the trial judge not to instruct the jury that the State was required to prove defendant knew the firearm was defaced at the time he possessed it.

At the time the judge charged the jury, the model charge did not contain the additional element defendant points to. That additional element did not become part of the model charge until the Supreme Court Model Criminal Jury Charge Committee approved a revision on January 9, 2006 which added the scienter element. Model Jury Charge (Criminal), "Possession of a Defaced Firearm (N.J.S.A. 2C:39-3d), (1/09/06)." Defendant contends that by excluding this fourth element, the court failed to define every element of the crime and thereby committed reversible error.

The State disagrees, and argues that defendant's assertion "is incorrect, as is the recent revision of the Model Jury Charge on which defendant relies for support. There is no citation within the new charge to any decision of this Court or of the New Jersey Supreme Court authorizing the revision of the charge." The State characterizes the Committee's revision as an unwarranted exercise of its authority because, according to the State, the Committee impermissibly added an element to N.J.S.A. 2C:39-3(d) that is not reflected in either the statutory language or prior judicial construction. Therefore, the State argues, the scienter element that defendant have knowledge of the illegal character of the weapon, as required by the Committee amendment, is not required by the offense itself and should not have been added to the model charge.

In addition, the State points out that the "jury charge revision [in question] came about more than a year after the instruction was issued in this case, and should not be applied [retroactively] to this case for that reason alone."

The statute at issue here, N.J.S.A. 2C:39-3(d), provides that a person commits a fourth degree crime if he "knowingly has in his possession any firearm which has been defaced . . . ." Chapter 39 has been characterized as containing three classes of possessory weapons offenses. State v. Lee, 96 N.J. 156, 160 (1984).

The first class, contained in N.J.S.A. 2C:39-3, of which the defaced firearm statute is a part, makes mere possession of certain weapons a per se offense. Ibid. The second class, N.J.S.A. 2C:39-4, "prohibits the possession of a weapon with the intent to use it against the person or property of another." Ibid. Finally, N.J.S.A. 2C:39-5(d) prohibits the possession of certain weapons, subject to certain exceptions, "under circumstances not manifestly appropriate for such lawful uses as it may have." The classifications are described as a "careful mix" that "combine[] purely regulatory proscriptions with more serious crimes that require a level of culpability." State v. Villar, 150 N.J. 503, 510 (1997). Furthermore, "each provision must be construed in light of the others, lest the sections become superfluous." State v. Hammond, 104 N.J. 189, 196-97 (1986).

A commentator on Title 2C and the interpretation of its provisions explains that the scienter element raised by defendant is not required by the statute at issue. He describes the legislative history of N.J.S.A. 2C:39-3(d) as follows:

Subsection (d) is derived from proposed 2C:39-3h, but with significant changes. The source section (see Commission Commentary paragraph 1, available online) forbade the possession of only those weapons which had been defaced for particular purposes -- concealment of a crime or misrepresentation of the identity of the firearm. The Code section forbids possession of any defaced firearm. Thus, once defaced, a firearm (unless antique) becomes per se illegal. [John M. Cannel, New Jersey Criminal Code Annotated, comment 6 on N.J.S.A. 2C:39-3(d) at 888 (2007).]

We conclude for several reasons that the State is correct and the January 9, 2006 revision to the model charge was error.

First, we agree with the State that the Court has already held that mere possession of certain weapons constitutes a per se offense. Lee, supra, 96 N.J. at 160. There, the Court discussed N.J.S.A. 2C:39-3, the statute at issue here, in the course of its discussion concerning the constitutionality of N.J.S.A. 2C:39-5(d), the statute that prohibits possession of a weapon for an unlawful purpose. The Court analyzed N.J.S.A. 2C:39-3 and held that possession of the enumerated items is a per se offense:

In evaluating . . . the constitutionality of 2C:39-5(d), we begin with an analysis of the relevant sections of the New Jersey Code of Criminal Justice (Criminal Code). Those sections reveal a carefully constructed scheme for the criminalization of possession of weapons in various situations, depending on the nature of the weapon, the intent of the possessor, and the surrounding circumstances. Broadly speaking, chapter 39, of which 2C:39-5(d) is a part, contains three classes of possessory weapons offenses.

In the first class, the mere possession of certain weapons, such as sawed-off shotguns, constitutes a per se offense. [Lee, supra, 96 N.J. at 160 (1984) (emphasis added).]

In light of the Court's conclusion that mere possession of certain weapons, such as sawed-off shotguns or, as here, a defaced firearm, is a per se offense, the language of the model charge to the contrary is erroneous.

Second, there was no change in the statute or in applicable case law that necessitated this change.

Third, the revision is at odds with the prevailing statutory provisions governing culpability in general and mental states in particular. N.J.S.A. 2C:2-2(c)(1) specifies that "[w]hen the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears."

Here, a contrary purpose plainly appears. N.J.S.A. 2C:39-3 sets forth categories of weapons and devices, the possession of which is prohibited by law. Subsections (a), (b) and (c), respectively, prohibit the possession of destructive devices, sawed-off shotguns and silencers. Those three subsections create a per se offense because the State is required only to prove that the defendant knew that he had the particular item in his possession. By including subsection (d) in the same statutory section, and wording it in a parallel fashion, the Legislature no doubt intended to require the State to prove no more in subsection (d) than it required in subsections (a), (b) and (c).

Fourth, subsection(d) of N.J.S.A. 2C:2-2 specifies that "neither knowledge nor recklessness nor negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the code so provides." This statute makes it clear that unless the particular language of the statutory provision explicitly so requires, the State is not required to prove that a defendant knew his conduct was illegal. Under these circumstances, the January 9, 2006 revision was error because it requires the State to prove that a defendant knew his conduct was unlawful in circumstances where the statutory language does not call for such a result. Accordingly, the revision to the model charge runs afoul of N.J.S.A. 2C:2-2(d).

Finally, we agree with the State that in an analogous context, this court firmly rejected the identical argument defendant advances here. In State v. Pelleteri, 294 N.J. Super. 330 (App. Div. 1996), certif. denied, 148 N.J. 461 (1997), we held that the State was not required to prove that the defendant knew the gun in his possession was an assault firearm. We concluded that knowledge of the character of the weapon was not an element of the offense. Id. at 334. We were "satisfied that the Legislature intended to proscribe knowing possession, as distinguished from knowledge of the illegal character of the article possessed." Ibid.

As Judge Baime explained:

We are concerned here with a statute dealing with gun control. "New Jersey has carefully constructed a 'grid of regulations' on the subject. This is an area in which "regulations abound and inquiries are likely," and where the overarching purpose is to insure the public safety and protect against the acts and threats of violence. "[T]he dangers are so high and the regulations so prevalent that, on balance, the legislative branch may as a matter of sound public policy and without impairing any constitutional guarantees, declare the act itself unlawful without any further requirement of mens rea or its equivalent." When dealing with guns, the citizen acts at his peril. In short, we view the statute as a regulatory measure in the interests of the public safety, premised on the thesis that one would hardly be surprised to learn that possession of such a highly dangerous offensive weapon is proscribed absent the requisite license. [Id. at 335. (citations omitted).]

We believe the reasoning in Pelleteri is equally applicable here. Like the assault firearms statute, N.J.S.A. 2C:39-39(d) has the protection of public safety as its overarching purpose. Under these circumstances, the Legislature was entitled to limit the knowledge requirement to mere possession of the item, without additionally requiring that the person possessing the item be aware of the illegal character of the article possessed. Pelleteri, supra, 294 N.J. Super. at 335.

We are mindful of the provision of N.J.S.A. 2C:2-2(c)(3) that when a statute fails to specify the mental state that is necessary for the commission of an offense, the mental state of "knowingly" shall be deemed to be the applicable level of culpability, unless the statute clearly evinces a legislative intent to impose strict liability. We do not view N.J.S.A. 2C:2-2(c)(3), known as the "gap-filler" provision, as requiring the State to prove that defendant knew the firearm was defaced. The defaced firearm statute already specifies a mental state of knowing possession. In contrast, N.J.S.A. 2C:15-1, for example, specifies no culpability state for the exertion of force against another in a robbery. There, the gap-filler provision operates to require the force to be exerted knowingly. State v. Sewell, 127 N.J. 133, 138-39 (1992).

In light of the following factors, we conclude that the January 9, 2006 revision to the model charge was error: the absence of any statutory change or case law requiring the January 9, 2006 revision; the statutory language in N.J.S.A. 2C:2-2(c)(1) and 2C:2-2(d); and our holding in both Lee and Pelleteri. Under these circumstances, the trial judge here did not err when he failed to include the additional element that defendant seeks. We also recommend that the Committee revise the model charge by deleting the requirement that the State prove a defendant knew the firearm was defaced.


As to the arguments defendant raises in Point IV, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).


In Point V, defendant argues that the sentence imposed was excessive and must be reduced. He further argues that the imposition of two consecutive sentences, one on count ten, and another on count twelve, violates the principles of State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). We agree with the trial judge's conclusion here that the sentence imposed on count ten, possession of a weapon while committing a narcotics offense, N.J.S.A. 2C:39-4.1, requires the imposition of a consecutive sentence. Accordingly, the judge was correct in doing so.

As to count twelve, the judge imposed a consecutive sentence for defendant's conviction on the charge of certain persons not to possess weapons, but there, in contrast to count ten, a consecutive sentence was not mandatory. Yarbough requires sentencing judges to engage in a careful articulation of the reasons for imposition of a consecutive sentence. Yarbough, supra, 100 N.J. at 643. The judge did not do so here. Accordingly, we remand the sentence for reconsideration, at which time the judge shall explain his reasons for imposing a consecutive sentence on count twelve.

Finally, the State concedes, and we agree, that defendant is entitled to a new sentencing proceeding under State v. Natale, 184 N.J. 458, 492 (2005) (Natale II). Because defendant raised on direct appeal the issue of the imposition of a sentence that exceeds the presumptive term, and he is in the pipeline for Natale II purposes, defendant is entitled to a new sentencing proceeding. Accordingly, at such proceeding, the court shall explain its reasons for imposing a consecutive sentence on count twelve, and shall also reconsider the sentence in light of Natale II. The conviction is affirmed, and the sentence is remanded.

Affirmed in part. Remanded in part. We do not retain jurisdiction.


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