November 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANCIS MITCHELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-10-0831.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2010
Before Judges Lisa and Sabatino.
After a jury trial, defendant Francis Mitchell was convicted of one count of first-degree robbery, N.J.S.A. 2C:15-1 and one count of second-degree robbery, N.J.S.A. 2C:15-1. He now appeals, contending that the trial court erroneously denied his motion to sever the two counts of the indictment, that his convictions are tainted by alleged trial errors, and that his sentence is excessive. We affirm defendant's convictions but remand with respect to certain aspects of the sentence.
The indictment arose out of two robberies of a Bank of America branch office in Franklin Township, the first on August 3, 2006, and the second on September 1, 2006.
In the first robbery, at about 11:00 a.m. on August 3, 2006, an African-American male parked a black Hyundai Elantra at a gas station next to the bank. The man walked up to a teller and handed her a check and a note demanding money and informing her that he had a gun. The teller observed what she believed to be a gun in the man's left hand, wrapped in a black plastic bag. The teller gave the man more than $3000 in cash. After he left, the teller reported the robbery to her supervisors, who locked the bank and called the police.
The police arrived and reviewed the bank's video surveillance footage with the teller. She described the robber as an African-American male, about five feet, four inches or five feet, five inches tall, wearing eyeglasses and a cap, unshaven, and "scruffy looking." Thereafter, the police reviewed a surveillance video from the gas station next to the bank, which showed the Hyundai pulling into the service station shortly before the time of the robbery and a man getting out of the car and walking toward the bank. About seven minutes later in that video, it appeared that the same individual returned from the direction of the bank. While on his way back to the Hyundai, the man dropped--and then picked up--what the police believed to be money. Then he got into the Hyundai and drove off. The license plate on the Hyundai was not discernable, but the video did reveal that the vehicle had front end damage.
The second robbery occurred at about 10:15 a.m. on September 1, 2006, less than a month after the first robbery. A man entered the same branch of the bank wearing a cap and carrying a bag. He was speaking on a cell phone. One of the bank's employees asked the man if he needed any help. The man refused her assistance and left.
Five minutes later, the same man reentered the bank. This time, another female teller asked the man if he needed assistance. The man asked the teller if she was free. She stated that she was, and he approached her teller station. As he did so, the man handed the teller a handwritten note. He demanded that she read the note and comply with its instructions. According to the teller, the note instructed her to put all her cash from her drawer into a black plastic shopping bag that the man handed to her. The teller complied, placing approximately $3000 into the bag. The man grabbed the bag and left. The teller then pressed the panic button to report the robbery.
The teller in the second robbery described the robber as about five feet, six inches or five feet, seven inches, African-American, and having a "good build." She recalled that he had been wearing a black coat, jeans, and a baseball cap that had a shiny logo on its flap.
A police detective recovered the note, as well as a business check, that the robber had presented to the teller. The check was made out to a "Chris Taylor," in the amount of $347. The detective was able to read defendant's name under a portion of the upper left-hand corner of the check that had been scratched out with ink. With the aid of a backlight, the detective was able to make out a street address on the check for certain premises located at Route 27 in Somerset.
The parties stipulated that defendant owned a Chicken Holiday restaurant located at that Route 27 address. The parties also stipulated that the account number on the check matched a closed bank account that was formerly held by defendant. Through motor vehicle records, the detective ascertained that defendant had a Hyundai Elantra registered under his name, and that the vehicle matched the description of the vehicle observed at the gas station in the August 3, 2006 robbery.*fn1
Later that day, investigators assembled a photo array of several African-American males and showed the array to the second teller at her residence. From the array, the teller identified defendant as the robber.
On September 5, 2006, defendant found out from his wife that the police were looking to speak with him. The following day, September 6, 2006, defendant voluntarily arranged to meet police officers at the Edison train station for questioning. He was then taken to the Franklin Township police station, where he met with two detectives. After being read his Miranda*fn2 rights and waiving them, defendant denied any involvement in a robbery. Five days later, defendant met with the detectives again. He was re-administered Miranda warnings, but he again did not provide a confession. Neither of defendant's recorded interviews with the detectives were admitted at trial.
A grand jury subsequently issued a two-count indictment, charging defendant in Count One with first-degree robbery of the bank on August 3, 2006, and charging him in Count Two with first-degree robbery of that same bank on September 1, 2006. Before trial, defendant moved to sever the two counts of the indictment. The trial court*fn3 denied the motion, concluding that severance was not warranted, particularly in light of the factual similarities between the two robberies, and the likelihood that, even if the trials were severed, under N.J.R.E. 404(b) evidence of one robbery would be admissible at the trial of the other robbery. Prior to trial, the trial court granted the State's motion to amend Count Two to a downgraded charge of second-degree, rather than first-degree, robbery.
During the three days of trial testimony in September 2008, the State presented testimony from four police detectives who investigated the robberies and from the two police officers who presented the photo array to the second teller. The State called the operator of the video equipment at the gas station, who verified that the equipment was in working order on August 3, 2006. The State also presented an auto technician from the gas station, who attested that the vehicle shown in the video was, in fact, a Hyundai Elantra from a model year between 2001 and 2005.
The State presented testimony from each of the two tellers who had given the robber the money he demanded. The first teller was unable to make an in-court identification of the robber, noting that, at the time of trial, defendant, unlike her recollection of the robber, was clean-shaven. The first teller also explained that she had been staring at what appeared to be a plastic-covered gun during the robbery. The second teller, however, positively identified defendant in court as the perpetrator of the September 1, 2006 robbery.
A branch manager of the bank testified that, based on final cash tallies, the robber took $3,175.50 in the first robbery and $3,085.25 in the second robbery. Another teller, who had been stationed directly next to the victimized teller in the second robbery, testified and described the robber as "wearing a black puffy jacket, was probably about five [feet] nine [inches tall], [and] had a hat on with a shiny sticker on the top of it . . . . [a]nd he had a backpack on."
Additionally, the jury viewed the surveillance video from the gas station, as well as videos filmed from surveillance cameras within the bank from both robberies.
After the State rested its case, defendant moved for judgment of acquittal on the first count of the indictment, which the court denied.
Defendant was the sole witness in his own case. He denied involvement in either of the robberies, asserting that other persons had access to his Hyundai Elantra. Defendant acknowledged on cross-examination that the Hyundai Elantra shown in the gas station video was indeed his car, and also that the check used in the second robbery was in fact his own check.
On the second day of deliberations, the jury returned a guilty verdict on both counts of the indictment. Thereafter, the trial court sentenced defendant to a fifteen-year term on the count of first-degree robbery and a consecutive seven-year term on the second-degree robbery. Both sentences were made subject to the parole ineligibility periods prescribed by the No Early Release Act, ("NERA") N.J.S.A. 2C:43-7.2.*fn4 This appeal ensued.
Defendant raises the following points for our consideration:
IT WAS AN ABUSE OF DISCRETION BY THE MOTION JUDGE TO DENY DEFENDANT'S MOTION TO SEVER THE TWO COUNTS FOR SEPARATE TRIALS.
IT WAS ERROR FOR THE TRIAL JUDGE NOT TO MAKE FURTHER INQUIRY OF A JUROR WHO EXITED THE JURY ROOM IN A HIGHLY EMOTIONAL STATE.
THE PROSECUTOR'S INVITATION EXTENDED TO DEFENDANT DURING SUMMATION TO STAND NEXT TO THE VIDEOTAPE PICTURE OF THE ROBBER WAS IMPROPER AND DENIED DEFENDANT A FAIR TRIAL.
IT WAS ERROR TO DENY DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AND A NEW TRIAL
THE CUMULATIVE EFFECT OF THESE ERRORS WARRANT A REVERSAL AND A NEW TRIAL
THE EXCESSIVE SENTENCES AND THE IMPOSITION OF CONSECUTIVE SENTENCES WERE BOTH ABUSES OF DISCRETION BY THE TRIAL JUDGE.
We discuss these arguments in turn.
Defendant's first argument contends that the trial court abused its discretion in declining to sever the two counts of the indictment into separate trials for each of the bank robberies. We disagree.
"The decision whether to sever an indictment rests in the sound discretion of the trial court." State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (citing State v. Briley, 53 N.J. 498, 503 (1969)). Pursuant to Rule 3:15-2, when "it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation[,] the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief." R. 3:15-2(b). As noted by our Supreme Court in applying this Rule, "[c]entral to the inquiry is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" Chenique-Puey, supra, 145 N.J. at 341 (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)). The reasoning behind this legal standard is that, "[i]f the evidence would be admissible at both trials, then . . . 'a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.'" Chenique-Puey, supra, 145 N.J. at 341 (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983)).
Under N.J.R.E. 404(b), evidence of a person's "other crimes, wrongs, or acts" may be admissible for purposes other than showing that the person acted in conformity with a trait of his or her character on a particular occasion. Among other things, such Rule 404(b) evidence may be admitted to prove a criminal defendant's opportunity to commit a crime, his preparation, his plan, or his identity, "when such matters are relevant to a material issue in dispute." Ibid.; see also State v. Cofield, 127 N.J. 328, 338 (1992).
Pursuant to what has become known as the "Cofield test" implementing Rule 404(b), in order to be admissible, a defendant's prior conduct must: (1) be relevant to a material issue in dispute, (2) be similar in kind to the current charge and reasonably close in time to the events at issue;*fn5 (3) be shown by clear and convincing proof; and (4) have probative value that is not outweighed by the prejudice. Id. at 338; see also State v. Barden, 195 N.J. 375, 389 (2008). We ordinarily apply a deferential standard of review in evaluating a trial judge's assessment of the prior conduct, focusing upon whether the admissibility ruling comprised an abuse of discretion. State v. Marrero, 148 N.J. 409, 483-84 (1997).
In applying these well-established standards to defendant's severance motion here, the trial court provided the following reasoned analysis:
Here the State has demonstrated the applicability of [N.J.R.E. 404(b)] by establishing that the crimes [i.e., the robberies of August 3 and September 1, 2006] bear peculiar and unique similarity to one more indicative of the perpetrator's identity and, therefore, rendering severance of the counts contained in the indictment inappropriate. The factual similarities noted here with the same bank being robbed twice within a month during the same time of day with bank footage depict the same individual as the perpetrator. In the first robbery[,] video footage from a nearby gas station shows the perpetrator running to his vehicle, and the vehicle is identical to a vehicle registered to the defendant[,] including the matching front end damage. Police discover the type of vehicle the defendant owned[,] and the fact that it had been damaged[,] after the second robbery because[,] in the second robbery[,] the perpetrator left behind a check bearing defendant's name.
In the second robbery[,] a teller identified defendant in a photo array as the perpetrator. In both robberies the perpetrator handed the tellers a black plastic bag. In both robberies the perpetrator gave the teller a check with the printed[,] handwritten note on lined paper appended to the check. Similar verbiage was contained in both notes where the notes threatened a shooting unless currency was immediately tendered. In both instances[,] the tellers were told to go to the back of the teller area after the robbery[,] thereby allowing the perpetrator time to escape.
Both tellers described the perpetrator's physical characteristics in a similar fashion. Finally, [in] both robberies[,] the perpetrators elected to approach female tellers of the same race.*fn6 Therefore, in light of these factual similarities, the severance of the counts in the indictment is inappropriate as the defendant will not be prejudiced by evidence that would otherwise be admissible under [N.J.R.E. 404(b)]. [Emphasis added.]
We concur with the trial court's analysis. The State's proofs showed that the two robberies were committed essentially in the same manner, in both instances with the use of a handwritten, printed note, and with a business check used to direct the tellers to provide the money to the robber. Additionally, the robberies were committed only a month apart at the same bank, against two tellers of the same gender and of the same apparent race or nationality. This last point is bolstered by the evidence that, on the day of the second robbery, the perpetrator aborted an earlier pass at the teller area until the targeted teller became available.
Defendant argues that the present circumstances are governed by State v. Pillot, 115 N.J. 558, 567 (1989), and by State v. Orlando, 101 N.J. Super. 390, 394 (App. Div. 1968). Each of those cases is distinguishable.
In Pillot, the defendant, who was charged with six different robberies, against six different victims, in the course of nine weeks, at various locations in Bergen and Passaic Counties, argued that the six cases should have been consolidated into one prosecution. The Supreme Court rejected that argument, finding that the offenses were "factually distinct in terms of time, place, and victim, if not manner." Id. at 567. The Court held that joinder of these offenses was not required, but it further observed that, if the trial court had ordered such joinder, it would not be "an impermissible exercise of discretion in these circumstances." Id. at 567-68. Here, the factors in favor of joinder are even stronger, as there is a common institutional victim and a common location of the robberies, and the robberies were committed in a more compressed time frame. Pillot therefore does not aid defendant's position on appeal; it merely underscores the trial court's discretion to choose whether to sever, or to consolidate, multiple charged offenses.
Defendant's reliance upon State v. Orlando, supra, is also unavailing. In Orlando, the defendant was charged with two counts of impairing the morals of a minor arising out of two different incidents involving two different children who came to the defendant's home on two different days, two months apart. Orlando, supra, 101 N.J. Super. at 391. The defendant moved to have the two counts severed and tried separately, which the trial court denied without explanation or discussion. Id. at 393. We reversed the trial court's denial of severance in that setting, emphasizing the "abhorrent nature" of the charged offenses against the two minor victims, as well as the two-month gap between the offense. The calculus of prejudice versus probative value is fundamentally different here--a case that does not involve minor victims--with two robberies spanning a shorter time interval.
In sum, we detect no abuse of discretion by the trial court in denying the motion to sever and therefore affirm its determination. Chenique-Puey, supra, 145 N.J. at 341.
Defendant next argues that the trial judge made insufficient inquiry after a juror expressed discomfort and temporarily left the jury room on the second day of deliberations. This contention also lacks merit.
The events pertinent to defendant's argument are as follows. At about noon on the second day of deliberations, the foreperson sent a note to the judge, which indicated that the jurors would like to break for lunch. Five minutes later, before the note had been relayed to the judge, a female juror knocked on the door to the jury deliberation room and reportedly told the sheriff's officer that "I can't sit in here. I need to get air. I can't stay in here." According to the officer, he instructed the juror that she was not permitted to leave, at which point she asked to come out to the courtroom and be seated in the jury box.
The officer acceded to the juror's request, observing that her face was pale, and that she appeared to have been crying. The record indicates that, earlier in the trial, that same juror had to switch seats in the jury box with another juror because she suffered from back pain that made the chair initially assigned to her uncomfortable.
Following the lunch break, defense counsel requested that the judge make further inquiry to determine whether the juror in question was capable of continuing. The trial judge declined that request, making the following pertinent observations:
Juror number fourteen[,] or the woman who occupies seat number fourteen, she did express during jury voir dire that she has back and neck problems but if she's able to stand and stretch she'll be okay. We have put her in seat number fourteen and she has during the course of this trial stood up, stressed -- stretched -- moved around. She has brought an orthopedic seat and what appears to be an orthopedic back support. She has a heat bandage on the back of her neck, so obviously she has some physical distress. But I don't think it is a good idea upon reflection to inquire beyond that. If she is not able to continue[,] she will knock on the door once again.
The judge then brought the entire jury back into the courtroom and instructed them to return to their deliberations at the point where the juror had left. The record is bereft of any indication that the juror was still visibly uncomfortable or that she was hesitant to resume deliberations. The jurors then went back into the jury room.
After the jurors departed, the judge specifically noted on the record that when the jurors were given the instruction about resuming their deliberations "there was no hesitation [and] no surprised look from [the juror who had stepped out]" that would convey a request to the court, e.g., "don't make me go back in there.["] To the contrary, the judge observed that the entire jury had acted in a "normal" fashion, as "they stood up and went right back into the jury deliberation room," and that "there was no protest on the part of any of them to returning all twelve [jurors] to the room."
Twice, during the next hour of their deliberations, the jurors sent notes to the judge, asking for clarification concerning a portion of the jury instructions and the verdict form. Neither note said anything about any of the jurors being uncomfortable or being unable to proceed. Both times, the judge brought the jurors back into the courtroom and provided them with the requested clarification. Again, the record contains no indication that the juror who had stepped out earlier was in distress at any time. The jury then returned again to the deliberation room.
About an hour later, the jurors announced their verdict in open court. All of the deliberating jurors, including the juror who had previously stepped out, were polled; they each confirmed their individual agreement with the verdict without further comment.
Defendant now argues that the trial judge was obligated to conduct a deeper inquiry into why the juror in question wanted to leave the jury room before the lunch recess, and whether she was able to continue deliberations. Defendant speculates that the juror's emotional state possibly had resulted from being threatened by another juror. He maintains that, because of the lack of further inquiry by the trial judge, the verdict is tainted.
Rule 1:8-2 provides that if, "after submission of the case to the jury, a juror . . . is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is . . . discharged." R. 1:8-2(d)(1). Our Supreme Court has interpreted this to mean that "a juror who expressly states that she cannot be impartial or that she is controlled by an irrepressible bias, and therefore will not be controlled by the law, is unable to continue as a juror for purposes of Rule 1:8-2(d)(1), and must be removed from a jury." State v. Jenkins, 182 N.J. 112, 128 (2004).
The reported cases*fn7 in which removal of a juror under this Rule has been mandated, or where further inquiry by the judge was warranted, have typically involved scenarios in which a juror had specifically requested to be discharged, or where there was some other clear indication to the court that the juror was unable to continue to deliberate and fairly consider the evidence. In Jenkins, the main case upon which defendant relies, the juror in question sent a note through the jury foreperson to the trial judge, informing the judge that she wished to speak to him at sidebar about how her emotions were affecting her judgment while deliberating. 182 N.J. at 119. The trial judge spoke to the juror in the presence of counsel, and she explicitly stated to the judge that she could not continue to deliberate. Id. at 119-21. The trial judge then excused the juror and replaced her with an alternate. Id. at 121. The Supreme Court approved of the judge's actions in those circumstances. Id. at 123.
Unlike the juror in Jenkins, or in any of the other cases we have cited, in this case, the juror who briefly stepped out of the jury room never expressed an inability to continue her deliberations. The trial judge, understandably hesitant to intrude upon the jury's deliberations, did not wish to single out the juror with questioning that might have alarmed or concerned the other jurors. Instead, the judge reasonably inferred that the juror's previously-reported back and neck pain was the likely cause of her request to exit the jury room before lunch and sit in the courtroom. The judge reasonably permitted the juror to return to the jury room after their lunch hour and continue deliberations, which the juror did without expressing any reservations or complaint. The judge rightly assumed that, if there was an emotional or psychological reason that caused the juror to be unable to continue, she would have conveyed that upon returning to the jury deliberation room after the lunch recess. As there was no further indication by her, or by any other juror, that they would be unable to continue, defendant's reliance on Jenkins is unpersuasive.
Given the particular circumstances as they developed in this case, and the detailed observations made on the record by the trial judge, we conclude that the judge handled the situation in a reasonable fashion. The judge was not obligated to conduct any further inquiry into the reasons for the juror's temporary departure from the jury room, and the verdict should not be disturbed on this basis.
Defendant also argues that the verdict was tainted because, during her summation, the prosecutor requested that defendant stand next to a video screen. The screen displayed an enlarged still image of the perpetrator of the September 1, 2006 robbery taken from the bank's surveillance video. When the prosecutor made that request, defendant's trial attorney immediately objected. At sidebar, the trial judge sustained the objection. In his ruling, the judge stated:
I don't think that during summation it is proper to ask the jury to -- to exhibit the defendant to the jury. You can say[, ']look at him. Look at the pictures.['] But you can't bring him up. I am not going to permit that.
What I'm going to do is I am going to tell the jury that [defendant] will remain at counsel table at my instruction, that he is neither required [n]or permitted to be exhibited to the jury at this stage of the case, and that will obviate the necessity of a curative instruction.
The judge then concluded the sidebar. He advised the jury that he was declining the prosecutor's request "because at this stage of the trial it is not permissible for [defendant] to be exhibited to you next to the video [screen]." The prosecutor then resumed her summation, arguing that, as he was seated in the courtroom, defendant's physical features matched the still photographs of the robber which had been marked into evidence.
We need not comment at length about defendant's claim that the prosecutor's articulated request--which was swiftly and conclusively rejected by the trial judge--had the clear capacity to lead to an unjust verdict. The prosecutor was attempting to respond to the forceful arguments that had been made by defense counsel in his own summation, in which he asserted that defendant had been misidentified as the perpetrator of both robberies. Defendant's counsel emphasized that one of the two tellers was unable to positively identify defendant as the robber and he specifically reminded the jurors that they were "going to see the photographs again." In that context, the prosecutor's mere invitation to defendant to stand next to the video screen after the proofs had closed--although appropriately denied by the trial court--was not "so egregious that it deprived the defendant of a fair trial." See State v. Frost, 158 N.J. 76, 83 (1999). Nor was any curative instruction required, beyond what the judge advised the jurors after the sidebar.
Defendant's argument that the trial court improperly denied his motion for judgment of acquittal and for a new trial on the first count of the indictment lacks sufficient merit to warrant comment. R. 2:11-3(e)(2). Giving the State the benefit of all testimony favorable to its position and all reasonable inferences flowing from that evidence, the proofs were ample to support defendant's guilt on both counts of the indictment beyond a reasonable doubt. R. 3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967). We likewise reject as meritless defendant's claim that he is entitled to a new trial under a theory of cumulative error. R. 2:11-3(e)(2); State v. Wakefield, 190 N.J. 397, 538 (2007).
Lastly, we consider defendant's contention that his sentence was excessive. In this respect, we are mindful of the well-established principle that a sentence imposed within the applicable sentencing ranges should be set aside on appeal only if it "shocks the judicial conscience[.]" State v. Roth, 95 N.J. 334, 364-65 (1984). As the Supreme Court recently instructed, the "discretion [of sentencing judges] should be immune from second-guessing." State v. Bienik, 200 N.J. 601, 612 (2010).
Applying these standards, we are satisfied that the sentences imposed upon defendant were within its discretionary authority of the trial court and were not excessive, particularly given defendant's prior criminal history, which included multiple indictable convictions and disorderly persons convictions. The mitigating factors of excessive hardship and age cited by defendant were not manifestly applicable, and they do not, in any event, outweigh the substantial aggravating factors identified by the trial judge.
Moreover, the trial judge provided a detailed and sound written justification for imposing consecutive sentences for the two robberies, which were conducted about a month apart and individually victimized two different bank tellers. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 398 (1986).
Two aspects of the sentence warrant discussion. First, the judgment of conviction contains an apparent clerical error, mistakenly expressing defendant's period of parole ineligibility under NERA as "18.7%" rather than the "18.7 years" that the judge had orally, and correctly, stated on the record at the sentencing hearing when imposing the 85% parole ineligibility period mandated under NERA. See N.J.S.A. 2C:43-7.2. The trial court shall correct the judgment of conviction accordingly, within thirty days of this opinion.
Second, we note that the sentence, as imposed, calls for consecutive periods of five years of parole supervision on the first-degree robbery, followed by another three-year period of parole supervision on the second-degree robbery. Our affirmance of the sentence does not foreclose defendant from making an application to the trial court to eliminate the consecutive nature of the parole ineligibility periods, subject to the Supreme Court's ultimate decision in State v. Friedman, 413 N.J. Super. 480 (App. Div. 2010) (holding that the imposition of consecutive parole supervision periods is unauthorized under NERA), certif. denied, ____ N.J. ____ (Oct. 5, 2010).
The judgment of conviction and the corresponding sentence are affirmed, except for the correction to the judgment of conviction that we have ordered, and without prejudice to defendant's ability to move before the trial court to have his periods of parole supervision under NERA deemed non-consecutive under State v. Friedman, supra.