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State v. Elliot


April 6, 2010


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1371.

Per curiam.


Submitted March 22, 2010

Before Judges Lisa and Baxter.

Following a trial by jury, defendant Tarique Scott was convicted of second-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4) (count five).*fn2 On January 9, 2008, defendant filed a timely notice of appeal of his December 14, 2007 conviction.*fn3

The judge sentenced defendant on count one to a ten-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. After merging count four with count three, the judge imposed a five-year term of imprisonment on count three. He imposed a four-year term of imprisonment on count five. Although the judgment of conviction (JOC) does not specify whether those three sentences were concurrent or consecutive, the judge specified at sentencing that count three would be concurrent to count one, and count five would be consecutive to the sentences imposed on the other two counts.*fn4 The sentence on Indictment 06-08-1371 was ordered to be served concurrently with three violation of probation sentences, as well as a sentence imposed on Indictment 07-06-956, which charged terroristic threats.

On appeal, defendant raises the following claims:







We reject the claims defendant advances in Points I and II. We affirm defendant's conviction and sentence. We do, however, agree with defendant's contention in Point III that he should be permitted to separately appeal the denial of his PCR petition, as the claims he has advanced in the present appeal are of the sort typically presented on direct appeal, not in a PCR petition. We also note that in the PCR proceeding, defendant raised ineffective assistance of counsel claims, the denial of which he has not raised on appeal. We therefore conclude that if defendant seeks to challenge the denial of his PCR petition, as he apparently does, he should file a separate notice of appeal from that determination. We thus agree with the claims defendant advances in Point III.


On April 12, 2006, Crystal Newsome and Florin Savu were walking on a narrow sidewalk in Jersey City when they were approached by two men walking close together who both had their hands in their pockets. One was considerably taller than the other.

As the men walked past Newsome and Savu, one of the two punched Savu in the face, causing him to fall backward. According to Newsome, one of the men said "give us your money, . . . and you won't get shot." Savu, in contrast, testified that both men demanded money, and both threatened to shoot Newsome and Savu if they did not do as they were told. Believing that the assailants did indeed have a gun, Savu retreated to the middle of the street in hopes that an approaching car could be of some assistance. With his hand still in his pocket, the taller man, later identified as defendant, followed Savu into the middle of the street, and ordered him to throw his wallet to the ground. Rather than comply with that instruction, Savu began to take the cash from the wallet and hand it to defendant. Not satisfied, defendant grabbed Savu by the shirt and attempted to seize his wallet. The two began to struggle. Because defendant was not able to overpower Savu, he picked up a metal broom handle lying on the street and began hitting Savu in the head.

While defendant was demanding Savu's wallet and attacking him, co-defendant McKnight remained on the sidewalk with Newsome, where he demanded she give him her money. After telling him that she only had quarters, she began to dole them out slowly to distract McKnight so that he would be prevented from assisting defendant in attacking Savu.

While defendant was still swinging the metal stick at Savu, two police cars on routine patrol arrived on the scene and several officers intervened. Officer Maria Ruocco testified that while observing defendant beating Savu with the metal stick, she yelled "freeze," but defendant took off running. He then stopped and was taken into custody. McKnight, who had run in a different direction when he saw the police, was later captured hiding in a nearby yard.

Newsome and Savu identified defendant and McKnight as the men who had threatened to shoot them if they did not give up their money. The on-scene identification occurred no more than five minutes after police first arrived. At police headquarters, Newsome and Savu again identified defendant as one of the two assailants. Savu completed a signed witness identification statement declaring that he identified defendant as the assailant who punched him, tried to steal his wallet, struck him with the metal stick and threatened to shoot him. Nonetheless, at trial, the prosecutor did not ask Savu to identify defendant; however, the prosecutor did pose that question to Newsome, Ruocco, and Officer Brian Fitzgerald, another officer who arrived at the scene, and all three identified defendant in court as the assailant who struck Savu with the metal stick.

During the charge conference, the judge discussed his intention to instruct the jury on both subsection (1) of the robbery statute, for knowingly "us[ing] force" upon Savu and Newsome during a theft, and well as subsection (2) for "threaten[ing] [them] with or purposely put[ting] [them] in fear of immediate bodily injury." Defendant asserted that the indictment only charged him with a violation of subsection (1) of N.J.S.A. 2C:15-1. The judge overruled defendant's objection and included subsection (2) in his charge to the jury.

During the charge, in the course of his instruction concerning in-court and out-of-court identifications, the judge mistakenly stated that Savu, in addition to the other three witnesses, had identified defendant in court as the person who repeatedly struck him with the metal stick. Defendant did not object to the judge's error.


A. Permitting the Jury to Consider an Additional Subsection of the Robbery Statute Than the One Charged in the Indictment

When a defendant raises a claim of error concerning the judge's charge to the jury, the error must be "viewed in the totality of the entire charge [and] not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). "Nevertheless, because clear and correct jury instructions are fundamental to a fair trial, erroneous instructions in a criminal case are 'poor candidates for rehabilitation under the plain error theory.'" State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

The factors most relevant to our review of an alleged error in a jury charge are:

(1) the nature of the error and its materiality to the jury's deliberations; (2) the strength of the evidence against the defendant; (3) whether the potential for prejudice was exacerbated or diminished by the arguments of counsel; (4) whether any questions from the jury revealed a need for clarification; and (5) the significance to be given to the absence of an objection to the charge at trial. [State v. Docaj, 407 N.J. Super. 352, 365-366 (App. Div.) (citations omitted), certif. denied, 200 N.J. 370 (2009).]

In Point I(A), defendant argues that his conviction must be reversed because the jury was erroneously instructed that it could convict defendant of robbery if it found that he either knowingly used force or threatened to use force against the victims in committing a theft, pursuant to subsection (1) or (2) of N.J.S.A. 2C:15-1(a), respectively. As we have noted, the indictment referenced only the language of subsection (1) by charging defendant with "knowingly . . . us[ing] force upon Florin Savu and Crystal Newsome" during the course of a theft. Defendant interposed an objection when the trial judge indicated that he would be instructing the jury on both subsections (1) and (2) of N.J.S.A. 2C:15-1(a).

Rule 3:7-3(a) governs the contents of an indictment in New Jersey. Rule 3:7-3(a) provides:

The indictment or accusation shall be a written statement of the essential facts constituting the crime charged . . . . It may be alleged in a single count either that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. An indictment or accusation or any count thereof charging the violation of a statute or statutes shall state the official or customary citation thereof, but error in the citation or its omission shall not be ground for dismissal of the indictment or accusation or for reversal of a conviction if the error or omission did not prejudicially mislead the defendant. . . . [Emphasis added.]

An indictment must be sufficient "to enable a defendant to know that against which he must defend; to prevent an accusation in derogation of our interdiction of double jeopardy; and to preclude substitution by a trial jury of an offense for which the grand jury has not indicted." State v. Spano, 128 N.J. Super. 90, 92 (App. Div. 1973), aff'd, 64 N.J. 566, 569 (1974). The principles enunciated in Spano are "not applied rigidly," however. State v. Branch, 155 N.J. 317, 324 (1998). Rather, they are "sufficiently flexible to permit a defendant to be found guilty of an offense not charged in the indictment." Ibid. For example, "a defendant may be convicted as an accomplice even if the indictment does not expressly so charge."

Pressler, Current N.J. Court Rules, comment 1.2.1 on R. 3:7-3 (2010).

It is clear, however, that "[a] jury may not convict on a theory of guilt not advanced by the State at trial and not charged by the court." State v. Burnett, 245 N.J. Super. 99, 105 (App. Div. 1990), certif. denied, 126 N.J. 340 (1991). "A conviction of an offense for which a defendant is not charged and which is not a lesser included offense of that designated in the complaint cannot stand." State v. Koch, 161 N.J. Super. 63, 67 (App. Div. 1978).

The robbery statute provides alternative means by which a defendant may be convicted of robbery; a defendant is guilty of robbery if, in the course of committing a theft, he "(1) [i]nflicts bodily injury or uses force upon another; or (2) [t]hreatens another with or purposely puts him in fear of immediate bodily injury[.]" N.J.S.A. 2C:15-1(a) (emphasis added).

The jury was charged as follows:

In order for you to find the defendant guilty of robbery, the state is required to prove each of the following elements beyond a reasonable doubt. That the defendant was in the course of committing a theft. That while in the course of committing that theft, the defendant A, knowingly inflicted bodily injury or used force upon another or threatened another with or purposely put another in fear of immediate bodily injury. [Emphasis added.]

Defendant asserts that it was error to instruct the jury that he could be found guilty of robbery for having "threatened another with . . . immediate bodily injury" during a theft or attempted theft when he was charged in the indictment only with actually using force against his victims. Defendant argues that "the court's charge allowed for a conviction based on the threat of immediate bodily injury, which was not charged against either defendant in the indictment." In support of his argument, defendant relies primarily upon State v. Begyn, 58 N.J. Super. 185, 201 (App. Div. 1959), aff'd, 34 N.J. 35 (1961), overruled in part by State v. Savoie, 67 N.J. 439 (1975), and Koch, supra, 161 N.J. Super. at 67.

Defendant's reliance on Begyn and Koch is unvailing. In Begyn, we reversed the defendant's conviction not because the judge charged the jury on a different subsection of the statute than the one referenced in the indictment, which is the case here, but instead because the judge's charge to the jury omitted the key element of the common-law crime of misconduct in public office. Id. at 198, 201. In Begyn, both the crime in question and the indictment required the State to prove that in his official capacity, the defendant made an agreement that was adverse to the public interest. Id. at 190-91. The judge's charge to the jury, however, misinformed the jurors that all that was needed to find the defendant guilty of misconduct was that the defendant accepted money from a garbage removal company. However, the judge failed to instruct the jury that the State was also required to prove the existence of the corrupt agreement, which was a necessary element of the offense. Id. at 198. Thus, our reversal of the defendant's conviction in Begyn was the result of the judge's improper omission of an element of the offense. It was not the result of permitting a jury to consider a violation of a different subsection of the statute than that charged in the indictment. Thus, Begyn is inapposite.

In Koch, we reversed the defendant's conviction because the Law Division, in entertaining a de novo appeal of a municipal court's judgment of guilt for a traffic violation, amended the defendant's criminal complaint on its own motion to charge a different, and far more serious offense, than that which was tried and charged in the municipal court. Koch, supra, 161 N.J. Super. at 65-66. This is not such a case. Thus, neither Begyn nor Koch supports defendant's position.

We agree with the State's contention that the trial court was entitled to instruct the jury on both subsections (1) and (2) of the second-degree robbery statute even though the indictment only charged a violation of subsection (1) because defendant was provided constitutionally adequate notice that he was being charged with second-degree robbery. The police reports and witness statements that were provided to defendant in discovery unequivocally put him on notice that the State's proofs included not only using force against his victims, as charged in the indictment, but also threatening them with immediate bodily injury. Thus, defendant knew "that against which he must defend" and he was not convicted by the jury "of an offense for which the grand jury has not indicted." Spano, supra, 128 N.J. Super. at 92. We thus reject the claim defendant advances in Point I(A).

B. Failing to Provide the Jury with a "Multiple Victims" Instruction

In Point I(B), defendant argues that the trial court's failure to provide the jury with a "multiple victims" instruction violated the principle of unanimity, as enunciated in State v. Gentry, 183 N.J. 30, 33 (2005), and as required by the model jury charges for robbery of multiple victims. The State, in response, argues that the particular facts of the case did not require a multiple victims instruction and that even if such an instruction were warranted, its absence did not prejudice the defendant sufficiently to warrant reversal under the plain error standard, which is applicable because defendant failed to object. State v. Macon, 57 N.J. 325, 336 (1971).

The principle of unanimity is "deeply ingrained in our jurisprudence" and mandates that "'jurors [must] be in substantial agreement as to just what a defendant did' before determining his or her guilt or innocence." State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)). While Article I, Paragraph 9 of the New Jersey Constitution and Rule 1:8-9 require a unanimous verdict in criminal cases, State v. Parker, 124 N.J. 628, 633 (1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1483, 117 L.Ed. 2d 625 (1992), "exactly how [the unanimity requirement] plays out in individual cases is more complicated." Frisby, supra, 174 N.J. at 596. For instance, juries need not unanimously agree on whether a defendant's role was that of an accomplice or a principal, Parker, supra, 124 N.J. at 633, nor is unanimity required where "a statute embodies a single offense that may be committed in a number of cognate ways[,]" Frisby, supra, 174 N.J. at 597.

On the other hand, "[i]t is well understood that courts should provide 'specific unanimity' instructions - that is, impose a requirement that the jury unanimously agree on the facts underlying the guilty verdict - when there is a specific request for those instructions and where there exists a danger of a fragmented verdict." State v. Gandhi, ___ N.J. ___ (2010) (slip op. at 38). The Court explained that where there is an allegation on appeal that a specific unanimity charge should have been given, the core question is, in light of the allegations made and the statute charged, whether the instructions as a whole posed a genuine risk that the jury would be confused. The reviewing court should examine two factors: whether the acts alleged are conceptually similar or are contradictory or only marginally related to each other, and whether there is a tangible indication of jury confusion. [Id. at 38-39 (internal quotations, citations, and alterations omitted).]

In Gentry, the Supreme Court deemed a unanimity instruction necessary to counteract the confusion introduced where there was more than one victim to a robbery. Supra, 183 N.J. at 31-33. Specifically, the Court applied the principle of unanimity to reverse a defendant's conviction for second-degree robbery of two victims where there was an indication that the jury was not in unanimous agreement as to which victim had been subjected to unlawful force during the course of the theft. Ibid.

The defendant in Gentry was indicted for one count of second degree robbery, pursuant to N.J.S.A. 2C:15-1, of both a store manager "and/or" an employee. Id. at 31. The defendant was accused of snatching several boxes of cigars and running out of a store. Ibid. It was alleged that during the theft, the defendant "charged" a female employee, knocking her backwards, and that defendant punched and kicked the store manager as the manager attempted to prevent the defendant from exiting the store. Ibid. The defendant contended that he only "brushed" past the female employee in running away, and accidentally kicked the manager, who had grabbed onto the defendant's pants in an attempt to thwart his escape. Ibid. Thus, the defendant's central argument was that he never intended to use force against or threaten either of the victims. Ibid.

During deliberations, the jury sent a note to the trial judge explaining that while all the jurors were in agreement that "defendant knowingly used force against" either the manager or the employee, they could not agree as to whether the employee or the manager had been the victim of the unlawful force. Id. at 31-32. One group of jurors believed that the unlawful force had been applied only against the manager, while another group believed that that the opposite was true. Ibid. The trial court concluded that such an outcome represented a unanimous jury finding of guilt and so instructed the jury. Id. at 32.

On appeal, a majority of an Appellate Division panel upheld the trial court's ruling, but Judge Coburn dissented on the ground that the jurors had not agreed unanimously on which acts were committed against which victim. State v. Gentry, 370 N.J. Super. 413, 426-27 (App. Div. 2004) (Coburn, J., dissenting), rev'd Gentry, supra, 183 N.J. at 33. In Judge Coburn's view, the jury's note to the judge clearly demonstrated the requisite danger of a fragmented verdict and jury confusion regarding unanimity. Ibid. The Supreme Court reversed the Appellate Division and remanded for a new trial substantially for the reasons expressed in Judge Coburn's dissent. Gentry, supra, 183 N.J. at 33.

The model jury charge for robbery was amended to incorporate the Court's ruling in Gentry, supra, 183 N.J. at 33, to read:

IF MULTIPLE VICTIMS ARE ALLEGED AND THE FACTS WARRANT, CHARGE THE FOLLOWING: To find the defendant guilty of robbery, you must be unanimous that the defendant used force against (NAME OF VICTIM NUMBER ONE) or (NAME OF VICTIM NUMBER TWO). In other words, if you find that the defendant used force, but do not unanimously agree that he/she used force against (THE NAME OF THE VICTIM), then the State has failed to prove the existence of force beyond a reasonable doubt. [Model Jury Charges (Criminal), Robbery in the Second Degree, N.J.S.A. 2C:15-1 (July 2, 2009) (emphasis added)].

Here, because defendant was charged and convicted in a single indictment of committing a robbery against two victims, the pertinent question is whether the facts are sufficiently similar to those in Gentry or present a great enough danger of a fragmented verdict to have warranted a multiple victims instruction.

The judge instructed the jury to find defendant guilty if it found that he "knowingly inflicted bodily injury or used force upon another or threatened another with or purposely put another in fear of immediate bodily injury." The judge also instructed the jury that the State was proceeding under a theory of accomplice liability, alleging that "the defendant is legally responsible for the criminal conduct of Raymond McKnight" as defendant's accomplice. To that end, it instructed the jury that

A person is an accomplice of another person in the commission of an offense if with the purpose of promoting or facilitating the commission of the offense, he solicits such other person to commit it, aids or agrees or attempts to aid such other person in planning or committing it.

If you find the defendant with the purpose of promoting as to facilitating the commission of the offense solicited Raymond McKnight to commit it or aided or attempted to aid him in planning or committing it, then you should consider him as if he committed the crime himself.

The court decided not to include a multiple victims instruction because it felt that a multiple victims unanimity instruction would "directly contradict[] what the accomplice liability charge is going to say." Instead, the court advised only that "your verdict must be unanimous. All twelve jurors must agree as to the guilt or not guilty [sic]." Defendant did not object to the absence of the multiple victims charge from the judge's jury instructions.

Defendant, citing only Gentry and the model jury charge, argues that the trial court was required to provide a multiple victims instruction because there were "separate victims, separate defendants, and separate alleged crimes" and particularly because "the indictment charged [defendant] with robbery by force against Mr. Savu and Ms. Newsome, together, in one count." Defendant contends that the danger of a fractured verdict was great, and was further compounded by the fact that the robbery statute allows for a finding of guilt based on either a finding of actual force against the victim or the mere threat of force. According to defendant, because the jury was never required to specify whether it accepted the State's theory of accomplice liability, the jurors "needed to be told that a complete robbery had to occur with respect to each individual victim in order to support a guilty verdict."

In response, the State argues that a unanimity instruction is required only where there is a possibility of jury confusion and there was no such indication here. As the State correctly observes, the most important distinction between Gentry and the case at bar is that in Gentry there was concrete evidence, in the form of the jury's note to the judge, that it had not reached a unanimous decision on whether the defendant had actually committed the prohibited acts with respect to the same victim. Supra, 183 N.J. at 31-33. Thus, the State argues that in Gentry, there was the "'tangible indication of jury confusion'" that the Court in State v. Gandhi, supra, slip op. at 39 (quoting Parker, supra, 124 N.J. at 639), held requires reversal, whereas in the present case there was no suggestion that the jury was confused, or, more importantly, that its verdict was not unanimous.

As the Court held in Gandhi, the "'core question'" is whether "'the instructions as a whole [posed] a genuine risk that the jury [would be] confused." Ibid. (quoting Parker, supra, 124 N.J. at 638) (alterations in original). Defendant has not demonstrated that the trial court's decision not to provide a multiple victims charge resulted in a "genuine risk" that the jury would be confused as to the unanimity requirement or that a danger of a fragmented verdict existed. Ibid. Given the absence of an objection in the proceeding below and the overwhelming strength of the evidence against defendant, it cannot be said that the trial court's decision not to provide a multiple victims charge "possessed a clear capacity to bring about an unjust result." Adams, supra, 194 N.J. at 207 (internal quotation omitted).

We recognize that the judge's instruction to the jury on robbery presented the jury with three different scenarios under which defendant could have been convicted of robbery: knowingly inflicting bodily injury, or using force upon another, or threatening another with immediate bodily injury. Unquestionably, only Savu was a victim of the first two, in that he was the only one to suffer bodily injury or be subjected to the use of force. However, the State's proofs demonstrated that, without any dispute, both Savu and Newsome were threatened with immediate bodily injury. Savu testified that both defendant and McKnight threatened to shoot the two if they did not turn over their money. While Newsome was unclear whether it was defendant or McKnight who had made that threat, her lack of certainty on that issue was of no consequence in light of the court's thorough and correct instruction on accomplice liability. Thus, under any view of the facts, the State presented an extremely strong case that both Newsome and Savu were subjected to a threat of force in connection with a theft.

So viewed, this case is markedly different from Gentry, where each victim was subjected to a different use of force at a different location. Here, Newsome and Savu were standing side by side when they were threatened by defendant or McKnight or both. Under those circumstances, we are satisfied that the risk of a fractured verdict that the court identified in Gentry is not present here. We thus reject the claim defendant advances in Point 1(B).

C. Improperly Instructing the Jury that Savu Made an in-Court Identification of Defendant as his Assailant

In Point 1(C), defendant maintains that the judge committed reversible error when he mistakenly informed the jury that Savu had identified defendant in court as the person who demanded his money and beat him with the metal stick. Because defendant failed to object, we will disregard this error unless it was "clearly capable of producing an unjust result." R. 2:10-2. We are satisfied that this error was harmless. Three witnesses, consisting of Newsome and two police officers, identified defendant in court as the person who they observed assaulting Savu with the metal stick. Under those circumstances, the judge's inadvertent reference to Savu having done likewise is of no consequence. We thus reject the claim defendant advances in Point I(C).


In Point II, defendant maintains that his sentence was excessive, both because the judge imposed the maximum term of imprisonment on count one and because he imposed a consecutive sentence on count five without explaining why that sentence should not be concurrent.

Our review of sentencing decisions is deferential. State v. Noble, 398 N.J. Super. 574, 598 (App. Div.), certif. denied, 195 N.J. 522 (2008). In the context of appellate review of sentencing, a reviewing court focuses on: (1) whether the trial court followed the sentencing guidelines; (2) whether the aggravating and mitigating factors that the trial court found are based upon competent, credible evidence in the record; and (3) whether, even though the court sentenced in accordance with applicable sentencing guidelines, nevertheless, the application of the guidelines to the facts of the case is so clearly unreasonable as to "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).

We are satisfied that the judge's finding of aggravating factors three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another offense; six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior record; and nine, N.J.S.A. 2C:44-1(a)(9), the need for deterrence, were well-supported by the record. Defendant had two prior drug distribution convictions, one of which was for drug distribution within a school zone, N.J.S.A. 2C:35-7. At the time of sentencing, he was also sentenced on an unrelated terroristic threats charge in a different indictment. Thus, this robbery charge was his fourth indictable conviction.

Moreover, there were two victims, one of whom was beaten and assaulted. A conviction for robbery can be sustained even if a defendant merely threatens the use of force, N.J.S.A. 2C:15-1(a), but here defendant did far more than merely threaten force because he actually repeatedly assaulted one of the two victims. We reject defendant's characterization of his offense as merely "taking quarters with a broomstick." The sentence on count one, ten years imprisonment with the required eighty-five percent parole disqualification term, does not shock the conscience and is well-supported by the evidence in the record. Roth, supra, 95 N.J. at 365. Consequently, we will not substitute our judgment for that of the sentencing court. State v. Cassady, 198 N.J. 165, 180 (2009).

We likewise reject defendant's contention that a consecutive sentence on count five for hindering apprehension was unjustified. We are satisfied that defendant's objective in committing the robbery (count one) and in running from police (count five) were entirely different, and the two crimes involved separate acts. Under such circumstances, the imposition of a consecutive sentence was not an abuse of the judge's discretion. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). We thus reject the claim defendant advances in Point II.


In Point III, defendant maintains that the judge erred by addressing his PCR claims before his direct appeal had been concluded. For that reason, he urges us to permit him to preserve for subsequent review his ineffective assistance of counsel claims, which he has not briefed here on direct appeal, but which were the subject of his PCR petition. We agree with defendant that such result is fair and should be permitted.

We also agree with defendant's contention that the judge should have refrained from hearing defendant's PCR. Once defendant filed an appeal on January 9, 2008 from his December 14, 2007 conviction, the Law Division should have dismissed the PCR without prejudice, pending the disposition of defendant's direct appeal in light of the provisions of Rule 2:9-1(a).

However, although we agree with defendant that the denial of his PCR petition should be preserved for separate appellate review, we will require defendant to file a separate notice of appeal, after which the Clerk's Office will calendar defendant's appeal of the denial of his PCR petition. We recognize that such filing will be outside the forty-five day deadline for the filing of a notice of appeal that is specified in Rule 2:4-1(a); however, because defendant did file a timely notice of appeal, though under the present docket number, we perceive no harm in permitting an untimely filing of a notice of appeal concerning the March 5, 2009 denial of his PCR petition.

Defendant's conviction and sentence are affirmed. The March 5, 2008 denial of defendant's PCR petition is preserved for subsequent appellate review once defendant files a new notice of appeal, which must be accomplished within forty-five days.

Remanded for correction of the JOC to specify the concurrent sentence on count four and the consecutive sentence on count five.

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