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State of New Jersey v. Al-Tariq Wardrick


November 16, 2012


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-11-3773.

Per curiam.


Submitted March 7, 2012

Before Judges Axelrad, Sapp-Peterson and Ostrer.

In a sixteen-count indictment, a grand jury indicted defendant, Al-Tariq Wardrick, and his brother, Jamil McKinney,*fn2

on robbery, assault, terroristic threats, resisting arrest, burglary and weapons offenses. Defendant appeals from his conviction and sentence for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-1 (Count One); first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (Count Two); second-degree burglary, N.J.S.A. 2C:18-2 (Count Fourteen); fourth-degree criminal trespass, N.J.S.A. 2C:18-3 (Count Fifteen); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Seventeen). The jury was hung on the remaining offenses, including third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b, and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. On appeal, defendant challenges several evidentiary rulings, including the denial of a Wade*fn3 hearing; the denial of his motion to set aside the verdict on the robbery charge because it was inconsistent with the jury's inability to reach a verdict on the weapons offense; the court's failure to question a juror regarding bias; and the court's failure to properly conduct a charge conference. While we find there were a number of trial errors, we conclude, neither separately nor collectively, do the errors warrant reversal of defendant's conviction and the sentence imposed. We therefore affirm.

The salient facts the State presented to the jury are as follows. In the early morning hours of April 9, 2007, around 1:30 a.m., three armed men forcibly entered a second-floor apartment of a three-family house located on South 10th Street in Newark, where Christopher Jones resided with his nieces, Tiara Parker and Lakesha Bell, and his niece's friends, Shontae Lewis and Latanya Carter.*fn4 Two of the men were wearing masks and were armed with handguns. They kicked in the door to Lewis's and Parker's bedroom, pointed guns at them, asked where the money was, and told them to go into the living room. Lewis and Parker complied. One man remained with the two females, while the other man, who was later joined by the third armed intruder, walked toward Christopher's bedroom. Neither Lewis nor Parker could identify the men. However, they recalled that one of the men was wearing a white t-shirt and had a silver automatic handgun, while the other two had black handguns. Lewis also recalled that the men were wearing jeans and that one of the men was wearing a black shirt.

Christopher, who had been asleep, awakened when he heard dogs barking and a banging noise. He saw two masked men armed with guns standing in his bedroom. He was unable to identify either man. One of the men pointed a black gun at him and demanded money and jewelry. Christopher responded that he did not have any money or jewelry and one of the men grabbed him. He tussled with them until one of the men struck him in the head with a gun and the other man pointed a gun at him. The men took his wallet containing $150, his watch, and the keys to his mother's green Honda Accord. They also took Lewis's Gucci purse, containing approximately $100 in cash, various credit cards and other forms of identification. None of the items stolen were ever recovered.

As events were unfolding in Christopher's apartment, his brother, Melvin Jones, who resided in the first-floor apartment, awakened when he heard what sounded like "scuffling" coming from his brother's upstairs apartment. He opened his apartment door and saw a man standing in the foyer with a stocking cap over his face. The man pointed a black gun at him and told him to go back into the apartment, which he did. Melvin then called 911 and told the dispatcher that one of the men was wearing gray jeans, a light gray sweatshirt, and a doorag.*fn5 While Melvin was talking to the dispatcher, he heard "a lot of commotion going on upstairs," and from his vantage point by the front window, he saw three men exit the house, stop to talk on the front porch, and then "start going down the street." As he saw a police car driving toward his house, he told the dispatcher that the men "leaving the house" were the robbers, that one of the men entered a burgundy Pontiac Grand Am, and the other two men ran down the street.

Newark Police Officers Orlando Andujar and Lawrence Brown, Jr., who had been patrolling approximately five to six blocks from the area, responded to the dispatch of the reported home invasion on South 19th Street. As the officers turned their marked vehicle, with their lights and siren activated, onto South 10th Street, they saw a dark-colored vehicle with tinted windows driving south at a high rate of speed. The officers were unable to determine the license plate number of the vehicle. They also saw two men, whom Officer Brown identified in court as defendant and McKinney, running from the house, then across the street directly in front of his patrol car, and then run south on 10th Street. Officer Brown observed that the two men were carrying handguns and that one of them wore a ski mask. He exited the patrol car, yelling "police, stop, stop." On foot, he chased the two men down an alleyway. While in pursuit, Officer Brown observed the men throw what appeared to be guns and a ski mask over a fence. He then saw them climb over another fence. Officer Brown stopped his pursuit at that point and reported the direction in which the two men were running to the dispatcher. He then located two black handguns and a black ski mask in the adjacent yard, and remained at that location until the crime scene technicians arrived.

Sergeant Austin Jackson picked up the chase on South 9th Street based on information provided by Officer Brown via radio transmission. He saw two men, whom he identified at trial as defendant and McKinney, running north along the rear yards of the homes on South 9th Street. Sergeant Jackson exited his vehicle and chased the men through backyards and over fences, while maintaining radio contact with other officers in the vicinity as to the direction in which the two men were running. Eventually, one suspect climbed through the window of what appeared to be an abandoned house located at 181 South 9th Street. Sergeant Jackson continued to pursue the other suspect who was running north, "jumping fence after fence," until the suspect became entangled while attempting to climb over a barbed wire fence. He stopped pursuing the suspect because he heard Officer William Golpe on the other side of the barbed wire fence. Officer Golpe, who had been monitoring the radio transmissions, saw a man wearing "torn or ripped blue jeans, a black [t]-shirt[,] and . . . a long white[-]colored thermal top" become entangled in the barbed wire fence. Officer Golpe placed the man, whom he was unable identify at trial, in custody.

Meanwhile, Sergeant Jackson and another officer returned to 181 South 9th Street and gained entry to the abandoned house. They found defendant crouched at the top of the stairs and placed him under arrest. After both suspects were apprehended, they were handcuffed and seated in the rear of separate patrol cars and transported back to the scene, where police arranged a showup identification with Melvin. Melvin positively identified the suspects as the men who were involved in the robbery, indicating that defendant was the man who had told him "to go back inside the house[,]" and that McKinney had "the big black gun[.]"

Sergeant Jackson testified that Melvin, who appeared calm but "kind of excited still from the experience[,]" was "very positive" about his identifications. In a written statement given to Detective Douglas Marshall at 4:10 a.m., less than three hours after the incident, Melvin again identified the two men in custody as the men involved in the robbery. Melvin told the detective that he "recognized" one of the suspects he saw running out of the house as his "upstair[s] neighbor'[s] cousin, and they call him Rico. He is the one in the hallway with the gun." Melvin stated that "Rico and one of the males ran down the street[,]" and "[t]he other male jumped into a burgundy Pontiac Grand Am and left. Then the police came and caught . . . the guys they showed me, both males, and they were [the] same males that I saw running out the house, and they had Rico." When asked if he had anything else to report, Melvin added that one of the men was "Rico, and the other, they call him 'Homey.'" Detective Douglas Marshall testified that Melvin appeared calm, voluntarily gave his statement, and that Melvin reviewed the written statement prior to signing it.

At trial, however, Melvin, while acknowledging he voluntarily provided a statement to police, claimed Detective Marshall had not accurately written the statement because Marshall inserted defendant's and McKinney's names into his responses. Melvin said that he only knew the names of defendant and McKinney "because [he] saw them back in the [patrol] car[,]" and claimed he had not recognized them as the men involved in the robbery. Melvin also said that he had only "skimmed" the written statement before he signed it.

Meanwhile, Christopher was taken to the hospital shortly after the police arrived at the scene. He received eighteen staples to close the lacerations to his head, and was prescribed Ibuprofen and Tylenol. Later that day, he went to the police station where he gave a written statement to Detectives Marshall and Levi Holmes. In his statement, he indicated that he could not identify the man who hit him with the gun because the man was wearing a black mask covering his face. When asked, however, whether he could identify the second man, he responded, "He didn't have a mask on. He [was a] black male, around five-feet-seven, light skin." The detectives testified that Christopher, who had a large cut on his head, appeared calm, did not appear to be under the influence of drugs, gave the statement willingly, and reviewed the written statement prior to signing it.

Thereafter, Detective Anthony Lima of the Newark Police Department showed Christopher a sequential array of six photos and gave him instructions regarding selection. Christopher selected defendant's photo and wrote on it, "[p]erson who pointed the gun at me and rob [sic] me." However, at trial, he recanted that identification, claiming he had been unable to clearly see the man he identified as defendant because his "vision was messed up" as a result of his injury and because he had lost consciousness earlier while at the hospital.

Officer Curtis L. Dorch, a crime scene investigator, testified that he photographed the apartment and collected evidence for analysis shortly after police arrived at the scene on April 9. He found no usable fingerprints on the black .40 caliber automatic weapon and the black .38 caliber revolver recovered from the nearby yard. He submitted the ski mask and swabs of what appeared to be blood found on the handle of the .40 caliber automatic weapon to the laboratory for analysis. DNA analysis confirmed that blood found on the .40 caliber automatic weapon belonged to Christopher, and the hairs found on the ski mask belonged to McKinney. There was no forensic evidence linking defendant to the crime.

Prior to trial, defendant moved for a Wade hearing, arguing that Melvin's out-of-court identification was unduly and impermissibly suggestive. The judge, based on the parties' written submissions, found only that defendant and McKinney had been taken back to the scene of the crime for a showup procedure after they were apprehended. The judge made no findings as to the manner in which the identification procedure was conducted or the length of time that elapsed between the crime and the identification. Moreover, although the judge found that Melvin had identified defendant "as the man who pointed the gun at him and ordered him into the apartment[,]" the judge did not make clear whether she was referring to Melvin's identification of defendant at the showup or his subsequent identification of defendant in his written statement. Adding to the confusion, the judge found that Melvin had recanted his identification because he could not "clearly see the face of the person who had pointed a gun at him because [that person] was wearing a ski mask[,]" and further that "a neighbor" had called defendant "by the name Rico and Homey." Nonetheless, the judge concluded that there was "no suggestibility by Law Enforcement[,] which is the bare bones of a Wade [h]earing. So as to Melvin . . . the

[c]court does not find an issue that would rise to the request by the defense of a Wade [h]earing of any evidence of any impermissibility or suggestiveness."

The jury reached a partial verdict, convicting defendant of Counts One, Two, Fourteen, Fifteen and Seventeen, acquitting him on Count Three, and failed to reach a verdict on the remaining counts. The jury likewise convicted McKinney of Counts One, Two Fourteen, and Sixteen, acquitted him on Count Three, and was unable to reach a verdict on the remaining counts. The State subsequently moved to dismiss all of the charges against defendant for which the jury was unable to reach a verdict. At sentencing, the court imposed an aggregate custodial sentence of fifteen years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The present appeal followed.

On appeal, defendant raises the following points for our consideration:

















In his first point, defendant contends the court erred in denying his motion to conduct a Wade hearing because the showup identification procedure was impermissibly suggestive, and should not have admitted Melvin's out-of-court identification because it was not sufficiently reliable to overcome the inherent suggestiveness of the showup procedure. We agree that defendant proffered sufficient evidence entitling him to a Wade hearing and that the court erred in failing to conduct the hearing. We also agree that the showup procedure was impermissibly suggestive. We conclude, however, the identification procedure was reliable under the totality of circumstances, notwithstanding the suggestive confrontation. State v. Herrera, 187 N.J. 493, 503-04 (2006).

"[I]dentification evidence has historically raised serious questions about reliability." State v. Chen, 208 N.J. 307, 319 (2011). In Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), the United States Supreme Court established the standard for determining the admissibility of out-of-court identifications, and New Jersey adopted that standard in State v. Madison, 109 N.J. 223, 232-33 (1988). The Manson/Madison "two-step analysis," applicable in 2009 when this case was tried, required "the court first to ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." Herrera, supra, 187 N.J. at 503-04 (2006). "[R]eliability is the linchpin in determining the admissibility of identification testimony[.]" Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.

A defendant is not automatically entitled, upon request, to a full Wade evidentiary hearing on the admissibility of an outof-court identification. State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004); State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). Instead, under the law applied at the time of this trial, a defendant had to "first 'proffer . . . some evidence of impermissible suggestiveness' to be entitled to a Wade hearing." State v. Henderson, 208 N.J. 208, 238 (2011) (quoting State v. Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993) (citations omitted), aff'd o.b., 135 N.J. 3 (1994)). However, our Court has held that "one-on-one showups are inherently suggestive." Herrera, supra, 187 N.J. at 504. Such a procedure is, by definition, "suggestive because the victim can only choose from one person, and, generally, that person is in police custody." Ibid. The procedure is also suggestive because it cannot be "performed blind or double-blind." Henderson, supra, 208 N.J. at 259. Thus, the "main problem with showups is that -- compared to lineups -- they fail to provide a safeguard against witnesses with poor memories or those inclined to guess, because every mistaken identification in a showup will point to the suspect." Id. at 260.

In appropriate circumstances, however, showup identifications are a useful and necessary tool. Id. at 259. Thus, for example, identifications made within a short time of the observation are permissible under Wade. State v. Wilkerson, 60 N.J. 452, 461 (1972); State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003). Showups conducted on or near the scene have been permitted because they: 1) "are likely to be accurate, taking place . . . before memory has faded"; 2) "facilitate and enhance fast and effective police action"; and 3) "tend to avoid or minimize inconvenience and embarrassment to the innocent." Wilkerson, supra, 60 N.J. at 461.

Here, Melvin's identification was made at the scene, within presumably a short time after he reported the incident to the police dispatcher. However, the earlier clothing description he gave to police for the armed man in the foyer, whom he identified as defendant, was inconsistent with the clothing defendant was wearing when apprehended by Sergeant Jackson. According to Melvin, defendant was wearing gray jeans and a gray sweatshirt. Sergeant Jackson testified that the individual he arrested, who was later identified as defendant, was wearing blue jeans and a white jacket. Thus, based upon the clothing description alone, the identification was arguably unreliable. Thereafter, when the officers asked him "to go over and see if [he] could identify [the] guys[,]" who at that point were handcuffed and seated, albeit separately, in the patrol cars, the identification turned into a highly suggestive process.

Because the procedure was inherently suggestive, the question to be resolved is "whether the impermissibly suggestive procedure was nevertheless reliable." Herrera, supra, 187 N.J. at 503-04. In assessing reliability, what is considered is the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.]

"The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification." Herrera, supra, 187 N.J. at 504.

Although the court did not conduct a Wade hearing, evidence as to almost all of the Manson factors was presented at trial. Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. Melvin had an opportunity to view defendant in his foyer and on his front porch, and recognized him as his neighbor's cousin. He described the ensuing robbery to the dispatcher, which tends to show he was paying close attention to the participants and events as they unfolded. He described defendant as a light-skinned, well-built man with short hair, who was five-feet-nine inches tall. Although the court did not make a finding as to the accuracy of the description, there is no evidence in the record that this description was ever challenged by the defense, in contrast to the defense's challenge of Melvin's description of the clothing defendant was purportedly wearing.

Additionally, the robbery occurred around 1:30 a.m. and police were dispatched to the area shortly thereafter. Melvin provided a written statement to police around 4:10 a.m., less than three hours after the incident was reported. Although there was no evidence as to the exact time between Melvin's observations at the house and the showup identification, given the sequence of events as they unfolded, it is likely the identification occurred within a very short period and certainly within the first two hours after the events unfolded.

Further, at trial, while Melvin testified that Detective Marshall inserted the names of defendant and McKinney in the written statement, consistent with his written statement, he did not change his testimony that defendant and McKinney were the two men he saw seated in the patrol car shortly after the robbers fled the scene. Those were the same two men, defendant and McKinney, who were chased by Officer Brown as they were observed fleeing from the victims' home, and who were then pursued by Sergeant Jackson, who picked up the chase. He saw one suspect, defendant, climb through the window of an abandoned house where he later apprehended him.

Weighing all of these factors against the "corrupting effects of the impermissibly suggestive procedure" supports a finding that the identification procedure was reliable and did not result in a substantial likelihood of misidentification, particularly when Melvin does not dispute that he recognized defendant from other contacts with him. Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. Thus, the trial court's denial of defendant's motion to conduct a Wade hearing was harmless error.


In Point II, defendant contends the court erred in admitting Christopher's prior inconsistent statement as substantive evidence pursuant to N.J.R.E. 803(a)(1) because the witness was physically and mentally impaired at the time he gave the statement. We disagree.

The State moved to introduce Christopher's prior written statement based upon his trial testimony, which was inconsistent with his prior statement. Because Christopher was called as a witness on behalf of the State, prior to admitting the statement, the court conducted a hearing to determine whether the State, by a fair preponderance of the evidence, demonstrated the prior written statement was given under "circumstances establishing its reliability." N.J.R.E. 803(a)(1)(A). In ruling the prior written statement admissible, the trial judge found the statement was reliable because Sergeant Holmes had recorded Christopher's responses "word for word[,]" had not made any corrections to the statement, and had signed the bottom of each page. The trial judge made no other specific findings as to the other factors, our Court has instructed trial courts to consider when conducting such hearings:

(1) the declarant's connection to and interest in the matter reported in the outof-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered . . . writing contains the entirety, or only a portion or summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence. [State v. Gross, 121 N.J. 1, 10 (1990) (quoting State v. Gross, 216 N.J. Super. 98, 109-10 (App. Div. 1987)).]

Irrespective of the trial judge's failure to specifically address the Gross factors or make any credibility findings, Christopher's prior statement was properly admitted. We are satisfied the circumstances under which he gave the statement were sufficiently reliable.

Christopher testified that at the time he gave the statement, he was in significant pain and his vision was slightly blurred. Medical records indicated that he suffered a "slight" concussion. He told the jury that he signed the statement because his head was hurting and he just wanted to go home. He also testified that prior to giving the statement, he had, at the hospital, received a "shot" of some unknown medication. Medical records admitted into evidence confirm that he received an injection of a local anesthetic, had not lost consciousness, was alert, was prescribed Ibuprofen and Tylenol, and was discharged as ambulatory. Although Christopher was injured, there is no evidence his mental or physical state was so impaired that it rendered his statement unreliable.

Further, despite his injury, Christopher gave accurate responses to questions regarding his date of birth, social security number, and address, and gave detailed answers to open-ended questions regarding the incident, which tends to support both his ability to make the statement and the reliability of the statement. An additional factor supporting reliability is his admission that the statement was truthful and voluntary, and that he reviewed it and then signed it.

Moreover, application of the other Gross factors supports a finding of reliability in that Christopher gave the statement to officers at the police station within hours of observing the robbers. He was a victim, not a suspect, and thus was not in custody or the target of the investigation, and had not incriminated or exculpated himself. There was no evidence in the record that, at the time he provided the written statement, he had any motive to fabricate. Nor was there any evidence that he had been coerced or pressured into making the statement. Likewise, at the time he gave the statement, he understood that he may be called to testify as to the content of the statement. Gross, supra, 121 N.J. at 10. There was also ample corroborating evidence supporting the reliability of the identification in that Officer Brown observed defendant run from the house, cross the street in front of his patrol car and run into an alleyway. Additionally, Sergeant Jackson found defendant hiding in an abandoned house, and Melvin identified defendant at a showup as one of the robbers.

Finally, the trial judge properly instructed the jury on identification and the ultimate credibility determinations concerning the reliability of out-of-court identifications it was required to make. State v. Delgado, 188 N.J. 48 (2006). The judge specifically instructed the jury that it must carefully examine and assess the witness's prior inconsistent statement in light of all the surrounding circumstances, and in determining whether such statement was reliable, could consider the witness's "physical and mental condition[]."


Defendant argues, as plain error in Point III, that his conviction should be reversed and the matter remanded for a new trial because the court failed to question one of the jurors after it learned the juror had recognized and briefly spoken to one of the State's witnesses. Because defendant did not object to the juror's continued presence on the jury after it was disclosed that the juror had communicated with Lewis, we review the claimed error under the plain error standard, namely, whether permitting the juror's continued presence on the jury without first personally conducting an interview of the juror was an error capable of producing an unjust result. R. 2:10-2. "The possibility of an unjust result must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Williams, 168 N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

While we conclude the trial judge should have personally interviewed the juror before permitting the juror to continue, we are satisfied this was not an error capable of producing an unjust result. Defense counsel was not only aware the juror had approached Lewis but agreed that the juror should remain and did not request that the court interview the juror.

After the juror approached Lewis and had a brief conversation with her, Lewis informed someone in the prosecutor's office that one of the jurors had spoken to her in the hallway earlier that day. The judge questioned Lewis under oath about the exchange. Lewis testified that while she was walking to the restroom before her trial testimony, juror number twelve, who only knew her by her first name, asked her if she still worked at the Pathmark Pharmacy in Montclair. She responded, "[y]es[,]" and continued walking. Lewis worked at the pharmacy one day a week. She recognized the juror as a customer, but said she had not seen him in about a year. The judge instructed her not to talk to the jurors and to inform the court if any other incidents occurred.

The judge then asked counsel, "[i]s there any application regarding this juror?" Attorneys for both defendant and McKinney placed on the record that they had no objection to the juror remaining on the panel. They requested that the judge instruct the jury not to speak to anyone involved in the case. The judge agreed to give the jury a general instruction without specifically naming juror number twelve.

Without any evidence in the record that the judge interviewed juror number twelve, inexplicably, the judge found no indication that the juror had a "hidden agenda" or was "trying not to be forthright" because he "just didn't seem the type[,]" and he appeared to genuinely not "know that [Lewis] was going to be a witness." Further, the judge found there was no application to remove the juror based upon the juror's familiarity with Lewis, who, in any event, had not seen the juror in over a year and, despite their brief contact in the pharmacy, would have recognized him because he was "very distinguished looking[.]" Nonetheless, because defendant and McKinney had left the courtroom before the exchange was brought to the court's attention, the judge said she would reconsider the matter after counsel had an opportunity to speak to their clients. Neither defendant nor McKinney moved to dismiss the juror for taint, nor did they ask the judge to question the juror individually.

Prior to summations, the judge placed her findings as to the "brief communication" between Lewis and juror number twelve on the record, confirmed with counsel that her findings were accurate, and confirmed there were "no objections to this juror remaining in the pool[.]" The court then asked if counsel were "comfortable with this juror just being a part of the 14 jurors in the pool for the random selection[,]" and they responded that they had no objection. Juror number twelve deliberated and rendered a verdict in this case.

It is well established that "[a] defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187 (2007). "The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants 'the right to . . . trial by an impartial jury.'" State v. R.D., 169 N.J. 551, 557 (2001). "That constitutional privilege includes the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." Ibid.

The court has an independent duty to investigate and act upon allegations of outside influence on jurors. Id. at 558. Where it becomes apparent at trial that a juror may have been exposed to extraneous information, the "court is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby." Ibid. See Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on Rule 1:16-1 (2012). "The trial court must then determine whether the trial may proceed after excusing the tainted juror or jurors, or whether a mistrial is necessary." R.D., supra, 169 N.J. at 558. "The decision to grant a new trial based on jury taint resides in the discretion of the trial court[.]" Ibid.

A new trial is not, however, warranted "in every instance where it appears an individual juror has been exposed to outside influence." Id. at 559. In fact, "it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78, 86 (1982). "Ultimately, the trial court is in the best position to determine whether the jury has been tainted." R.D., supra, 169 N.J. at 559.

The Court in R.D. provided guidance to trial courts in making the determination whether the jury has been tainted. The trial court should consider "the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings." Ibid. That was not done here because the judge failed to make any inquiry of the juror.

Equally troubling is that the judge made findings of fact about the juror without questioning him under oath, including that there was no indication the juror had a "hidden agenda" and that he "just didn't seem the type" to not be forthright. It is also problematic that the juror, upon belatedly realizing that he knew Lewis, albeit in a very casual manner, did not inform the court, particularly since Lewis's name was among the names on the witness list. However, since the encounter occurred before Lewis testified and because there is no evidence the juror knew Lewis by name, the juror may not have known that Lewis was a witness. By failing to interrogate the juror, however, this question remains unanswered.

Nonetheless, defense counsel did not simply acquiesce in the court's decision to allow juror number twelve to continue to serve. Rather, defense counsel was an active participant in the process and clearly agreed with the judge's assessment of the situation. Defense counsel placed on the record that he did not object to the juror remaining on the panel. The judge gave defense counsel an additional opportunity to revisit the issue prior to summations, confirmed with defense counsel at that time that her findings were accurate and that there were "no objections" to this juror remaining on the panel. Thus, while we conclude the judge erred in failing to interview juror number twelve to ensure, to the court's satisfaction, there was no juror bias, we conclude the error was harmless. We note the jury was unable to reach a verdict on the first-degree robbery of Lewis, whose testimony during trial was limited to the facts surrounding the alleged robbery committed against her, although she also testified to hearing the commotion in Christopher's room.


In Point IV defendant argues the trial court committed plain error when it failed to conduct a charge conference as required by Rule 1:8-7(b) and failed to conduct the conference in defendant's presence as required by Rule 3:16.

Rule 1:8-7(b) provides that "[p]rior to closing arguments, the court shall hold a charge conference on the record in all criminal cases. At the conference the court shall advise counsel of the offenses, defenses and other legal issues to be charged and shall rule on requests made by counsel."

Here, the record on appeal does not include a transcript of a charge conference. Instead, the record reveals that after the State rested its case, the judge asked counsel on the record to "meet in chambers for [ten] minutes so we get an idea of what charges we're going to go over[.]" Later that day, the court, on the record and outside the presence of the jury, read the "election not to testify" charge to defendant, McKinney, and their counsel, confirmed they were satisfied with the charge, and commented, "that is the charge, along with the other charges that we've discussed, and we will continue discussion after we let the [j]ury go home for the afternoon."

After defense summations the following day, the judge informed counsel that she intended to "go over the charge" with them to "make sure that the facts" she had "infused into the charge" were acceptable. Following the prosecutor's summation, she asked counsel to meet in chambers again to "go over the charge." When the court returned from a brief break," the judge commenced charging the jury, explaining:

I thank you so much for your indulgence. This is why it took so long, and the attorneys in court, everyone needs to agree, just as you need to agree, with the contents of the charge before we come out, and I'd rather take longer and give it right, than to speed it up and have anything that is not agreed upon by counsel. . . .

The judge continued the charge until late that afternoon and then recommenced resuming the charge the following morning. Defendant did not object to the charge or to the manner in which the charge conference was conducted.

Because defendant did not object to the manner in which the charge conference was conducted, partly off the record and partly on the record, the claimed error is reviewed under the plain error standard, that is, error "clearly capable of producing an unjust result." R. 2:10-2.

The court failed to comply with the requirements of Rule 1:8-7(b), in apparently discussing the jury charge with counsel off the record and in discussing the final version of the charge after counsel had completed their closing arguments. Defendant has not, however, pointed to any prejudice that resulted from the court's failure to hold a charge conference in accordance with the rule. Defense counsel was provided with an opportunity to make requests to charge, was made aware of the model jury charges that were to be given, and was given ample opportunity to object, which he did not do. Defendant also does not explain how his counsel would have changed his closing argument had the final charge conference been conducted in his presence. See State v. Rovito, 99 N.J. 581, 588 (1985) (purpose of Rule 1:8-7(b) is to allow counsel to conform summation to charge).

Next, defendant argues that his absence from the in-chambers charge conferences violated his right to be present during all stages of the proceedings. "The right to be present at trial is protected by the Sixth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment, and by Article I, paragraph 10 of the New Jersey Constitution." State v. Dellisanti, 203 N.J. 444, 453 (2010). "In some circumstances that do not involve the confronting of witnesses or evidence against a defendant, the right is protected by the due process clauses of the Fifth and Fourteenth Amendments." Ibid. "In combination, those constitutional protections provide a defendant with the right to be present at every stage of trial 'whenever . . . presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'" Ibid. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 332, 78 L. Ed. 674, 678 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)).

On an individual level, the right to be present at trial protects a criminal defendant's right to confront witnesses and affords a defendant an opportunity to communicate with counsel and to participate in his or her defense. Id. at 454 (citing State v. Hudson, 119 N.J. 165, 172 (1990)). On a broader level, the right also protects "the public's interest in the provisions of fair and just criminal proceedings." Ibid.

Furthermore, Rule 3:16(b) provides in part that "[t]he defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule." See Dellisanti, supra, 203 N.J. at 454 ("The right is so vital to the proper and fair functioning of the criminal justice system that it is protected by specific rule.").

Nevertheless, a defendant's right to be present at trial is not absolute. State v. Luna, 193 N.J. 202, 210 (2007); State v. Reevey, 417 N.J. Super. 134, 150 (App. Div. 2010), certif. denied, 206 N.J. 64 (2011). To prevail, a defendant must establish that his or her absence from the charge conference was prejudicial to his or her defense. Dellisanti, supra, 203 N.J. at 458. Thus, even if a defendant's constitutional right to be present has been violated, his conviction will be reversed only if "the absence was prejudicial to the defendant's right to participate in the evidential proceedings and confront the witnesses and evidence against him or to his ability to assist with his own defense." Id. at 458-59. "When the absence deprives a defendant of confrontation rights, prejudice can be readily assessed; when confrontational interests are not in play and participation in one's defense is the issue, prejudice is more critically examined." Id. at 459.

Although portions of the charge conference were conducted in chambers, the agreement reached regarding the charges to be given to the jury were placed on the record in defendant's presence. The proposed charges addressed legal issues. "A defendant has no absolute right to be present on each occasion when questions of law are argued and any right which he may have may be waived by him or his counsel." State v. Auld, 2 N.J. 426, 433 (1949) (no error where judge discussed jury question with counsel, gave jury a supplemental charge, and conducted arguments in chambers regarding admissibility of evidence); see State v. Hammond, 231 N.J. Super. 535, 541 (App. Div. 1989) (no error where judge charged jury in defendant's absence), certif. denied, 117 N.J. 636 (1989). Similarly, arguments presented during a charge conference focus primarily on questions of law. R. 1:8-7(b).

Nor does defendant establish how his absence from part of the charge conference prejudiced his defense. The judge read a portion of the charge regarding defendant's failure to testify to defendant on the record, confirmed that defendant was satisfied with that portion of the charge, and told counsel that she would continue the charge conference in chambers. Defense counsel did not object to the proceedings, and defendant did not request to be present during the charge conference. Moreover, defendant cannot show prejudice because he does not argue on appeal that his counsel failed to apprise him of the content of the proposed instructions discussed in his absence, nor does he contend that he lacked an opportunity to contest his counsel's decision regarding submission of the proposed instructions to the jury.


In Point V, defendant assigns reversible error to the trial court's failure to charge second-degree robbery. Once again, because defendant failed to object to the jury charge, we review the claimed error under the plain error standard. R. 2:10-2.

"[A] defendant waives the right to contest an instruction on appeal if he does not object to the instruction." State v. Torres, 183 N.J. 554, 564 (2005); R. 1:7-2. Thus, we may reverse on the basis of unchallenged error only if the error was "clearly capable of producing an unjust result." R. 2:10-2. "Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). This requirement is most critical in criminal cases "when a person's liberty is at stake." Id. at 289. Moreover, erroneous instructions on material issues in criminal prosecutions are, however, presumed to be reversible error. State v. Reddish, 181 N.J. 553, 613 (2004); State v. Bunch, 180 N.J. 534, 541-42 (2004).

Defendant was indicted for first-degree robbery. A person is guilty of robbery if, in the course of committing a theft, he:

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

(3) Commits or threatens immediately to commit any crime of the first or second degree.

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon. [N.J.S.A. 2C:15-1.]

The judge initially charged the jury, in accordance with Model Jury Charge (Criminal), "Robbery In The First Degree (N.J.S.A. 2C:15-1)" (2010), including:

If you find that the State has proven beyond a reasonable doubt that [defendants] committed the crime of robbery as I have defined the crime to you, but if you find that the State has not proven beyond a reasonable doubt that [defendants] were armed with or used or purposely threatened the immediate use of a deadly weapon at the time of the commission of the robbery, then you must find [defendants] guilty of robbery in the second degree.

The judge immediately called for a sidebar and said, "I think that [second-degree robbery] part is not supposed to be in it, because we don't have second degree." The prosecutor agreed, and defense counsel posed no objection. The judge then instructed the jury, without objection:

Even as fast as I'm reading, I do know when something is not supposed to be in here, and so to just backtrack, I think I indicated that -- a portion of the charge that referred to robbery of the second degree. There is no charge of robbery of the second degree. So that part is omitted.

The court did not repeat the charge regarding second-degree robbery in instructing the jury on Count Six, the first-degree robbery of Lewis.

Second-degree robbery is a lesser-included offense of first-degree robbery. See State v. Berardi, 369 N.J. Super. 445, 447 (App. Div. 2004), appeal dismissed, 185 N.J. 250 (2005); State v. Walton, 368 N.J. Super. 298, 310 (App. Div. 2004). N.J.S.A. 2C:1-8(e) provides that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." "[W]hether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to support a charge on that included offense." State v. Thomas, 187 N.J. 119, 131 (2006). A defendant, as opposed to the State, seeking a charge on a lesser-included offense must show that "the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." Id. at 131-32 (quoting State v. Brent, 137 N.J. 107, 117 (1994)).

The trial court is not required to sua sponte provide the jury with an instruction on a lesser-included offense unless the "facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002); see State v. Rivera, 205 N.J. 472, 489 (2011) (citing Thomas, supra, 187 N.J. at 132); accord State v. Jenkins, 178 N.J. 347, 361 (2004) (court has independent obligation to instruct on lesser- included charges when jury could convict on lesser while acquitting on the greater offense.); State v. Denofa, 187 N.J. 24, 42 (2006) (courts required to instruct jury on lesser-included offenses only if counsel requests charge and there is rational basis in record or, in absence of request, record clearly indicates charge is warranted).

Unquestionably, second-degree robbery is a lesser-included offense of first degree robbery. Thus, the first requirement under Thomas was met. Thomas, supra, 187 N.J. at 131. However, the record is devoid of any rational basis for a charge on second-degree robbery. Although no fingerprint or DNA evidence matching defendant was found on the handguns recovered at the scene and there was no evidence that defendant was wearing gloves, every eyewitness testified that defendant was armed with a handgun during the commission of the crime and his flight thereafter. Given this evidence, defendant could not have provided the "rational basis" needed to warrant a charge on second-degree robbery. Therefore, we find no plain error in the trial court's failure to instruct the jury on second-degree robbery.


Defendant argues in his Point VI that the court erred in denying his motion to set aside his conviction for first-degree robbery (Count Two) and grant him a new trial because the verdict on the robbery charge was inconsistent with the jury's inability to reach a verdict on the possession of a handgun charge (Counts Four and Nine), thereby rendering his conviction for first-degree robbery not supported by sufficient evidence in the record. We disagree.

The jury found defendant guilty of Counts One (conspiracy), Two (first-degree robbery of Christopher), Fourteen (burglary), Fifteen (criminal mischief), and Seventeen (resisting arrest), and not guilty of Count Three (aggravated assault). The jury was unable to reach a verdict on the remaining counts, including Counts Four and Nine (possession of a handgun and a .38 caliber handgun without a permit), Count Six (first-degree robbery of Lewis), and Counts Five, Ten, and Thirteen (possession of a weapon for an unlawful purpose). The jury reached a similar partial verdict as to McKinney.

Defense counsel moved to set aside defendant's conviction for first-degree robbery and grant him a new trial based on the inconsistency of the verdict. McKinney's counsel argued that given the jury's inability to reach a verdict on the possession of a handgun charge, Count Two "would be sustainable as a second[-]degree robbery." The judge denied the application, setting forth that a verdict does not require "consistency or logic. It requires unanimity, and I think they had found [sic] unanimous as to that charge."

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

Robbery is a second-degree offense unless, during the commission of the theft, the actor "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). The only weapon defendant is alleged to have used during the commission of the theft was a handgun, thus forming the basis of defendant's claim that the jury's inability to reach a verdict on the weapons offenses cannot support the first-degree robbery verdict. We disagree.

"Our system of justice has long accepted inconsistent verdicts as beyond the purview of correction by our courts," State v. Kelly, 201 N.J. 471, 487 (2010), and such verdicts "are accepted in our criminal justice system." State v. Banko, 182 N.J. 44, 53 (2004). Following the Dunn/Powell*fn6 rule, our courts have held that a jury may render an inconsistent verdict, provided there is adequate evidence to support the charges on which defendant is convicted. Id. at 55. Consistent verdicts are not required because the jury is entitled to evaluate each count of an indictment on its own merits. Ibid. "Review of the sufficiency of the evidence on the guilty verdict is independent of the jury's determination that evidence on another count was insufficient." State v. Petties, 139 N.J. 310, 319 (1995) (citing Powell, supra, 469 U.S. at 67, 105 S. Ct. at 478, 83 L. Ed. 2d at 470).

Defendant argues that an analysis of an inconsistent verdict is warranted "'where an acquittal on one count precludes the finding of one or more elements of an offense charged in a second count as a matter of law.'" State v. Ortiz, 253 N.J. Super. 239, 245 (App. Div.), certif. denied, 130 N.J. 6 (1992) (quoting State v. Peterson, 181 N.J. Super. 261, 266 (App. Div. 1981), certif. denied, 89 N.J. 413 (1982)). We disagree because here, defendant was not acquitted on the weapons offenses. Rather, the jury was unable to reach a verdict. "[T]he fact that a jury [is unable to reach a verdict] is evidence of nothing -- other than, of course, that it has failed to decide anything." Yeager v. United States, 557 U.S. 110, 125, 129 S. Ct. 2360, 2370, 174 L. Ed. 2d 78, 90 (2009). Although the claimed inconsistency in Yeager dealt with the ability of the government to re-try a defendant on a count for which the jury had been hung while acquitting the defendant on another count, the Court's reasoning applies with equal vigor here. The Court reasoned, "[a] host of reasons -- sharp disagreement, confusion about issues, exhaustion after a long trial, to name but a few -- could work alone or in tandem to cause a jury to hang." Id. at 122, 129 S. Ct. at 2368, L. Ed. 2d 78, 89. Thus, the Court concluded that the fact that the jury was hung on one count was irrelevant because a court must analyze only the acquittal, and issues the jury necessarily determined to acquit. Here, the analysis must likewise focus upon the elements of the first-degree robbery offense the jury considered in reaching a verdict on that offense.

First-degree robbery requires the jury to find beyond a reasonable doubt that in addition to committing a theft, defendant was "armed with, or use[d] or threaten[ed] the immediate use of a deadly weapon." With regard to the handgun charge, the trial court instructed the jury that the statute upon which this count is based reads as follows: "Any person who knowingly has in his possession a handgun, without first obtaining a permit to carry the same, is guilty of a crime."

In order for you to convict Jamil McKinney and Al-Tariq Wardrick, the State must prove each of the following elements beyond a reasonable doubt: That S23A is a handgun; that Jamil McKinney and Al-Tariq Wardrick knowingly possessed the handgun; and that Jamil McKinney and Al-Tariq Wardrick did have -- did not have a permit to possess such a handgun.

The first element is that the State must prove beyond a reasonable doubt . . . that S23A was a handgun under the law. I have given you already the definition of handgun.

The second element is that the State must prove beyond a reasonable doubt . . . that the defendant knowingly possessed a handgun. The definition of "knowingly" has previously been defined.

Two witnesses, Officer Brown, who observed the weapons being discarded as he chased two suspects running away from the scene, and Officer Dorch, the evidence officer who retrieved the weapons from the location where they had been found, provided testimony regarding the guns. Officer Dorch confirmed that no fingerprints were lifted from the recovered weapons linking defendant to the two guns. Thus, while the jury may have been convinced beyond a reasonable doubt that defendant used or threatened the use of a handgun during the course of committing the theft, it may not have similarly been convinced that defendant utilized or threatened the victims with the guns recovered by Officer Brown. Thus, its inability to reach a verdict on whether defendant possessed S23 or S22 in evidence, the two black guns, was a non-event in relation to the robbery conviction.

Moreover, even if we were to view the verdict on the first-degree robbery charge and hung decision on the weapons offense as inconsistent, courts accept inconsistent verdicts even where "no amount of rational exegesis" can explain the inconsistency. Kelly, supra, 201 N.J. at 487. "[I]nconsistent verdicts, such as an acquittal of a predicate offense and a guilty finding of a greater offense, could not be viewed simply as a jury giving 'a windfall to the Government' when it is just as likely that a jury--despite overwhelming evidence of guilt--found a defendant not guilty 'through mistake, compromise, or lenity.'" Ibid. (quoting Powell, supra, 469 U.S. at 65, 105 S. Ct. at 476, 83 L. Ed. 2d at 468). An inconsistent verdict may "be the product of jury nullification," and our courts permit such verdicts because it is beyond our power to prevent them. Banko, supra, 182 N.J. at 54.

Hence, under the Dunn/Powell rule, see State v. Grey, 147 N.J. 4, 11-12 (1996) (applying Dunn/Powell and rejecting Peterson, supra, 181 N.J. Super. at 266 as cited by Ortiz, supra, 253 N.J. Super. at 245), our inquiry is limited. We determine whether there was sufficient evidence to permit a rational jury to convict defendant of first-degree robbery independent of the jury's determination that evidence on another count was insufficient. Banko, supra, 182 N.J. at 55. Measured under this standard, we are satisfied there was sufficient evidence from which a jury could have found that in the course of committing a theft, defendant was armed with a deadly weapon, as required by N.J.S.A. 2C:15-1(b), based upon the testimony of the witnesses.

It is possible the jury could not reach a verdict on the possession charge because the handguns recovered at the scene were black, not silver, as described by Parker and Christopher, or, as noted earlier, because no usable prints were found on the guns. However, attempting to determine why the jury rendered this verdict would involve pure speculation and is the type of analysis specifically barred by the Dunn/Powell rule. Further, the jury's inability to reach a verdict is entitled to no preclusive effect because it, like a verdict of acquittal, may have been based on lenity, compromise or mistake on the part of some of the jurors. Kelly, supra, 201 N.J. at 492.

An inconsistent verdict "may not insulate a conviction from reversal based on other defects in the criminal proceeding."

Banko, supra, 182 N.J. at 55. "If error in the charge caused the inconsistency, that error, not the inconsistency, may require reversal." Cannel, New Jersey Criminal Code Annotated, comment 6 on N.J.S.A. 2C:1-8 (2012). Defendant, however, raises no other error related to the inconsistent verdict and it is not our task to canvass the record in search of such an error. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977).


Defendant argues in his Point VII that the cumulative effect of the trial errors, which independently may have been harmless, deprived him of his rights to due process and a fair trial and mandate a reversal pursuant to State v. Orecchio, 16 N.J. 125, 129 (1954). While we agree there were a number of trial errors, neither singly nor collectively do they warrant reversal of defendant's conviction.

Defendant was entitled to a fair trial, not one that is error free. State v. R.B., 183 N.J. 308, 333-34 (2005); State v. Humanik, 199 N.J. Super. 283, 306 (App. Div.), certif. denied, 101 N.J. 266 (1985). Defendant cites to no single error or aggregation of errors that deprived him of a fair trial. Moreover, as noted earlier, defendant affirmatively participated in the decision to permit juror number twelve to remain empanelled and did not object to the court's removal of second-degree robbery from the jury charge, notwithstanding that the court brought it to the attention of defense counsel after initially giving the second-degree instruction. Nor was there any objection to the final charge given to the jury.


In defendant's final point, he contends the sentence imposed was excessive. We are satisfied this point is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).


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