SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5301-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW E. JOHNSON, JR.,

Defendant-Appellant.

__________________________

Submitted December 6, 2018 – Decided August 9, 2019

Before Judges O'Connor and DeAlmeida.

On appeal from Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 13-04-1422.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Michele A. Adubato, Designated Counsel, 

on the briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Sara M. Quigley, Deputy Attorney 

General, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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PER CURIAM

A jury convicted defendant Andrew E. Johnson, Jr. of two counts of firstdegree armed robbery, N.J.S.A. 2C:15-1; three counts of second-degree 

conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; one count of 

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); three counts of 

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); three 

counts of second-degree possession of a weapon for an unlawful purpose, 

N.J.S.A. 2C:39-4(a); one count of third-degree aggravated assault, N.J.S.A. 

2C:12-1(b)(2); three counts of third-degree possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4(d); one count of third-degree attempted 

theft, N.J.S.A. 2C:20-2(b)(2)(d); five counts of fourth-degree aggravated assault 

(pointing a firearm), N.J.S.A. 2C:12-1(b)(4); three counts of fourth-degree 

unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and one count of fourthdegree criminal mischief, N.J.S.A. 2C:17-3(a)(1).

After merging certain convictions, defendant was sentenced to an 

aggregate term of forty-one years in prison. Defendant appeals from his 

convictions and sentence. In counsel's brief, defendant raises the following 

points for our consideration:

POINT I: DEFENDANT'S PRETRIAL MOTION 

FOR SEVERANCE OF THE ROBBERY COUNTS 
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SHOULD HAVE BEEN GRANTED BY THE 

COURT.

POINT II: THE OUT-OF-COURT POLICE

IDENTIFICATIONS MADE UNDER

IMPERMISSIBLY SUGGESTIVE

CIRCUMSTANCES SHOULD HAVE BEEN 

EXCLUDED FROM EVIDENCE.

POINT III: COMMENTS MADE BY THE 

PROSECUTOR DURING THE SUMMATION 

CONCERNING FACTS NOT IN EVIDENCE WERE 

GROSSLY PREJUDICIAL AND DEPRIVED 

DEFENDANT OF A FAIR TRIAL.

POINT IV: THE ADMISSION OF CERTAIN 

INFLAMMATORY EVIDENCE DEPRIVED 

DEFENDANT OF A FAIR TRIAL.

POINT V: IT WAS ERROR FOR THE 

SENTENCING COURT TO FAIL TO MERGE 

CONSPIRACY AND AGGRAVATED ASSAULT 

WITH THE ROBBERY OFFENSES.

POINT VI: THE AGGREGATE SENTENCE OF 

THIRTY-SEVEN YEARS WITH EIGHTY-FIVE 

PERCENT PAROLE INELIGIB[I]LITY WAS 

EXCESSIVE AND SHOULD BE MODIFIED AND 

REDUCED.

After the State filed its brief, defendant filed a supplemental letter brief 

through counsel. The supplemental brief noted the State issued a subpoena to 

obtain his cell phone records, which the State then used at trial to show he was 

one of the perpetrators involved in the subject crimes. Counsel argues the State 
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should have obtained such records by securing a search warrant, and that its 

failure to do so warrants a reversal of his convictions. This issue was not raised 

before the trial court.

In his supplemental pro se brief, defendant advances the following three 

arguments, although his second and third points were raised in counsel's initial 

brief:

POINT I: TRIAL COURT'S REPEATED USE OF 

THE AMBIGUOUS PHRASE "AND/OR" IN THE 

JURY INSTRUCTION ON POSSESSION OF A 

DEADLY WEAPON WAS PLAIN ERROR. (Not 

raised below). 

POINT II: THE TRIAL COURT ERRED IN THE 

DENIAL TO NOT [sic] SEVER THE INDICTMENT.

POINT III: THE IDENTIF[I]CATION OF JARELL 

MARSON AND RICARDO RIVERA SHOULD 

HAVE BEEN SUPPRESSED DUE TO THE FACT 

THEY WERE THE PRODUCT OF COERCION AND 

NOT INDEPENDENTLY MADE BUT IMPOSED 

ON THEM BY THE POLICE.

Having reviewed the briefs, the record, and applicable legal principles, we

affirm the convictions. For the most part, we affirm defendant's sentence; 

however, we determine certain counts must merge with others and the sentences 

imposed on them must be vacated. We remand this matter for correction of the 

judgment of conviction.
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I

We summarize the pertinent evidence relevant to the claims raised on appeal. 

Co-defendant Ricardo Rivera, Jr., testified that he, defendant, and co-defendant 

Jarell A. Marson were friends and, on August 2, 2012, carried out a plan to rob a 7-

Eleven in Cherry Hill for the purpose of stealing money. Consistent with that plan, 

Rivera waited in his car as the getaway driver, while defendant and Marson entered 

the 7-Eleven to execute the robbery. When defendant and Marson returned to the 

car, they told Rivera they stole $300 from the cash register. Rivera was given sixty 

dollars and the other two split the remaining proceeds taken from the register.

Marson also testified that he and defendant entered the 7-Eleven between 

11:00 p.m. and midnight. When they entered the store, he was carrying a metal pipe

and defendant a gun, and their faces were covered. While defendant pointed the gun 

at a clerk and Marson held up the pipe "like a bat," defendant demanded the clerk 

tell them where the safe was located. When the clerk did not respond, defendant hit 

the clerk's head with the gun and Marson struck him on the head with the pipe.

The clerk fell to the floor and began bleeding from the back of his head. 

Notwithstanding his condition, defendant grabbed the clerk by his arm, dragged him 

to the back of the store where an office was located, and demanded the clerk reveal 

the location of the safe. The clerk managed to get up, go to, and open the cash 
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registers. Marson grabbed money from the registers, and he and defendant ran from 

the store and got into Rivera's car. The clerk's testimony of what occurred in the 7-

Eleven was consistent with Marson's, although the clerk added that because they 

were masked, he could not identify his assailants. The clerk further noted he called

the police after Marson and defendant ran from the store.

Rivera testified that after defendant and Marson robbed the 7-Eleven, the three 

discussed robbing a Wendy's in the same municipality. They decided to carry out 

their plan at 2:00 a.m., when the restaurant was closing. Like the first robbery, they 

agreed Rivera would wait in his car nearby as the other two entered and robbed the 

Wendy's. Marson testified that when he and defendant got to the restaurant, Marson 

was carrying the same pipe and defendant the same gun they had when they entered 

the 7-Eleven earlier. Both were dressed in dark clothing and their faces were 

covered.

Marson further testified that when he and defendant crossed the parking lot 

toward one of the doors at Wendy's, defendant pointed the gun at and Marson held 

the pipe in a "swinging manner" near an employee who was outside of the building, 

and "pretty much, like, forced him back into the building." Other employees coming 

out of the door were forced back inside, as well, as defendant pointed the gun at 
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them. Marson told who he believed was the manager of Wendy's to turn off the 

alarm. Meanwhile, defendant brandished the gun at the other employees.

Marson testified he and defendant went to an office in the restaurant and told 

the manager to open the door, but the manager did not have the key. Marson hit his 

pipe against and defendant shot through a window in the door, causing the window 

to break and enabling the manager to reach through the window to open the door 

from the inside. While pointing a gun at them, defendant made the employees and 

manager go into the office. Then, while specifically pointing the gun at the manager, 

defendant told him to open the safe. The manager complied and pulled money out 

of the safe. Defendant and Marson took approximately $500 of the money removed 

from the safe, fled the restaurant, and got into Rivera's car, which was parked at a 

predetermined location. Rivera was given a portion of the robbery proceeds, and 

Marson and defendant split the rest.

Testimony provided by Wendy's manager was essentially consistent with 

Marson's; the manager added he contacted the police as soon as Marson and 

defendant fled. However, because defendant and Marson's faces were covered, the 

victims of the robbery could not identify them.

Marson testified that on August 5, 2012, he, defendant, and Rivera discussed 

robbing another entity. Rivera again agreed to be the driver of the getaway car. 
8

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While the three were riding in Rivera's car, they spontaneously decided to rob 

another 7-Eleven in Cherry Hill, which was different from the one they had robbed 

three days before. Rivera dropped Marson and defendant off and the two approached 

the store.

Marson noted that, like the first two robberies, he and defendant wore dark 

clothing and their faces were covered. Marson carried the same metal pipe and 

defendant the same gun. As defendant reached for the door handle, Marson saw a 

clerk inside of the store and noticed his "arm reach down" to press what Marson 

surmised was an alarm. Marson then heard an alarm go off. Meanwhile, defendant 

had tried to but was unable to open the door because it was locked. Marson and 

defendant ran to where Rivera was waiting and the three drove off.

Police officer Joseph Hurley testified he was in his patrol car when he 

observed Rivera's car stopped in the middle of a road, although the car proceeded 

forward when Hurley's patrol car got behind Rivera's. Then, at one point, Rivera 

took off at a high rate of speed. The officer activated his overhead lights and siren, 

but Rivera did not stop and a chase ensued.

Eventually, Rivera slowed down and defendant jumped out of the car. Rivera 

then brought his car to a stop. By then, the back-up assistance Hurley had called for 
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arrived. When the police approached the car, they observed a gun on the floor in 

front of the passenger's seat and arrested Rivera and Marson.

In addition to other evidence, a search of the car revealed a metal pipe, as well 

as a cell phone that belonged to defendant. Marson and Rivera ultimately gave 

statements confessing their and implicating defendant's involvement in the two 

robberies and the attempted robbery. Marson and Rivera subsequently pled guilty 

to various charges and, as part of their plea agreement, consented to testify against 

defendant.

II

A

As noted, among other charges, defendant was convicted of committing one

count of first-degree robbery at 7-Eleven on August 2, 2012, and one count of firstdegree robbery at Wendy's the following day. Although charged with first-degree 

robbery in connection with the incident at 7-Eleven on August 5, 2012, he was found 

not guilty of that offense; however, he was found guilty of third-degree attempted 

theft. Before trial, defendant unsuccessfully moved to sever the three counts of 

robbery.

On appeal, defendant contends the court erred when it denied his motion. 

Defendant maintains the offenses arising out of each incident should have been tried 
10 A-5301-15T4

separately, so that the jury would not conclude he had a propensity to engage in 

criminal conduct. He claims that at the time the motion was argued, it was known 

the co-defendants were willing to provide testimony of defendant's participation in 

all three incidents. Therefore, in order to prove defendant guilty of any one of the 

robberies, it was unnecessary to introduce evidence of the other two. The State 

argues the trial court did not err when it denied the severance motion, thus permitting 

evidence of all three robberies at trial, because such evidence established motive, 

common scheme, plan, and defendant's identity, given the jury might have rejected 

the co-defendants' testimony on credibility grounds.

Whether a severance motion should be granted is within the trial court's 

discretion, and we defer to that decision, absent an abuse of that court's discretion. 

State v. Chenique-Puey, 145 N.J. 334, 341 (1996). Generally, offenses "of the same 

or similar character" or "based on the same act or transaction or on 2 or more acts or 

transactions connected together or constituting parts of a common scheme or plan" 

may be joined together in the same indictment. R. 3:7-6. However, if it "appears 

that a defendant . . . is prejudiced by a permissible or mandatory joinder of offenses 

. . . in an indictment or accusation the court may order an election or separate trials 

of counts . . . or direct other appropriate relief." R. 3:15-2(b).
11 A-5301-15T4

"Central to deciding whether joinder is prejudicial 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.'" State 

v. Oliver, 133 N.J. 141, 150-51 (1993) (quoting State v. Pitts, 116 N.J. 580, 601-02 

(1989)). See also Pressler & Verniero, Current N.J. Court Rules, cmt. 2.3.1 on R.

3:15-2 (2019) ("[S]eparate crimes have a sufficient nexus to each other to justify 

joinder if proof of one crime would be admissible as proof of the other pursuant to 

N.J.R.E. 404(b)."). If the evidence would be admissible at each trial, then the trial 

court may try the counts together because the defendant "will not suffer any more 

prejudice in a joint trial than he would in separate trials . . . ." State v. Coruzzi, 189 

N.J. Super. 273, 299 (App. Div. 1983).

Under N.J.R.E. 404(b), evidence of other crimes, wrongs or acts is 

inadmissible to prove a "defendant's criminal disposition as a basis for establishing 

guilt of the crime charged." State v. Covell, 157 N.J. 554, 563 (1999) (citing State 

v. Stevens, 115 N.J. 289, 293 (1989)). However, evidence generally inadmissible 

under N.J.R.E. 404(b) is expressly admissible to prove other facts in issue, such as 

"motive, intent, plan, knowledge, identity, or absence of mistake or accident." 

Covell, 157 N.J. at 563-64 (quoting Stevens, 115 N.J. at 293).
12 A-5301-15T4

To be admissible, evidence otherwise excluded by N.J.R.E. 404(b) must 

satisfy the four-part test set forth in State v. Cofield, 127 N.J. 328, 338 (1992). 

Covell, 157 N.J. at 564. Thus, for evidence of other crimes or acts to be admissible, 

such evidence must: (1) be relevant to a material issue; (2) be similar in kind and 

reasonably close in time to the offense charged; (3) be clear and convincing; and (4) 

have a probative value that outweighs its apparent prejudice. Cofield, 127 N.J. at 

338.

Here, the trial court analyzed and applied the Cofield factors. The court found 

the evidence of the crimes committed during the three incidents clear and 

convincing, and that the probative value of such evidence outweighed its prejudice, 

given the evidence of the other incidents was relevant and material to identifying 

defendant as one of the perpetrators. Specifically, the court noted all three incidents 

occurred in physical and temporal proximity, shared a common motive, and bore 

similar characteristics revealing a common scheme or plan. The court elaborated 

upon those characteristics in its oral opinion, stating:

[T]he three robberies are similar in character and are 

based on the same act[s] or transactions which 

constituted parts of a common scheme or plan, that 

plan being robbery. I note that all three robberies 

occur[red] within a five to ten mile range of each 

other. Each robbery included two males holding a gun 

and a metal [pipe] with the male wearing dark clothing 
13 A-5301-15T4

and masks to cover – each of the males wearing dark 

clothing and masks to cover their faces.

The choice of victims appeared to be 

commercial establishments. The first two robberies 

took place within a two hour span and the first two 

were located approximately five miles apart from each 

other.

The victims in each robbery were threatened 

with a hand gun and metal [pipe] and both of these 

weapons were used to gain access to money.

The third robbery occurred approximately three 

days later. It occurred on August fifth and again 

involved another commercial establishment using the 

same weapons and the same common scheme. . . .

The executions of these three crimes are of a 

similar fashion. All three defendants had an 

assignment for the execution of these robberies and 

the same weapons were used in each of these events. 

For an example[,] each party [was] assigned to enter 

with a weapon[] and take money or drive the getaway 

vehicle . . . . 

You have here robberies, two of which occurred 

within two hours of one – of each other. You have the 

third one occurring within three days of the two. And 

as I said in each of these robberies each defendant had

an assigned job for the execution of each of these 

robberies. And again in each robbery the assailants 

covered their faces and used weapons . . . .

In addition, the court found Rivera's and Marson's anticipated testimony at trial 

would clearly establish defendant's role in all three incidents.
14 A-5301-15T4

In our view, for the reasons expressed in its decision, the trial court's 

admission of evidence of all three incidents was not an abuse of discretion under 

Cofield. They bore similarities that made joinder of all counts related to the two 

robberies and the attempted robbery appropriate, in order to show the robberies were 

committed by the same individuals, which included defendant.

The similarities included that Rivera drove the getaway car while Marson and 

defendant carried out the robberies and attempted robbery at similar commercial 

establishments in the same municipality. The first two robberies were just hours 

apart and the third incident occurred just two days later. Marson wielded a metal 

pipe and defendant a gun during each incident. Both were dressed in black and had 

covered their faces.

Even if the trial on any one of the incidents had been tried separately, evidence 

of the other two incidents would have been admissible under N.J.R.E. 404(b), 

because such evidence was probative of defendant's identity, plan, and scheme to 

commit the other robberies. See State v. Morton, 155 N.J. 383, 451-52 (1998).

Defendant argues that, given Rivera and Marson were going to testify and 

their anticipated testimony would establish defendant's role in any one of the 

incidents, there was no need to introduce evidence of the other two incidents. 

Therefore, he should have been tried for only one incident at a time. We disagree.
15 A-5301-15T4

The jury may not have found the co-defendants' testimony defendant 

participated in any one of the incidents credible. Therefore, other evidence to show 

a common scheme or similarity among the incidents was necessary. Such evidence 

included the location and the timing of the other incidents, the weapons used, and 

the role and actions of each perpetrator. Therefore, we reject defendant's contention 

the trial court erred by failing to sever the three counts of robbery.

B

Defendant contends the police coerced the co-defendants into testifying at 

trial that defendant was one of the culprits involved in the three incidents. We reject 

this contention as wholly without support in the record. Defendant also contends the 

police failed to adhere to the holding in State v. Henderson, 208 N.J. 208 (2011), by 

impermissibly suggesting to the co-defendants that defendant was involved in the 

three incidents. We reject this contention as well, because it was well established 

all three defendants frequently socialized before the subject incidents and were 

highly familiar with each other. No amount of police suggestiveness could have 

influenced the co-defendants' identification of defendant.

C

For the first time on appeal, defendant argues that certain comments made by 

the prosecutor during her summation were grossly prejudicial and deprived him of a 
16 A-5301-15T4

fair trial. Because this argument was not raised below, we consider it under a plain 

error standard of review, and will reverse only if the error was "clearly capable of 

producing an unjust result." State v. Macon, 57 N.J. 325, 337 (1971) (quoting R.

2:10-2).

Before reciting the subject comments, we set forth an excerpt from defendant's 

summation:

Mr. Johnson was not involved in these crimes with 

Jarell Marson or Ricardo Rivera. There is no reliable 

testimony before you as to who that third person was, 

because it was not Mr. Johnson. There is no DNA 

evidence, there is no fingerprint evidence, although 

[from] my recollection of the testimony, and it may 

actually I think have showed up in the videos, is that 

clearly with regard to the first incident at the 7-Eleven 

on August 2nd and with regard to what occurred at 

Wendy's also on August 2nd of 2012, there did not 

appear to be gloves worn and there did not appear to 

be any fingerprint evidence.

. . . .

Is there any testimony at all that attempts were made 

to fingerprint the door handles? Were there any prints 

at all acquired? Were there any prints attempted of 

the phone in the center console? Would that evidence 

not have been helpful? And if – or would it not at 

least have been helpful to know that it didn't exist? 

But we will never know that because they didn't do 

their job.

. . . .
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Again, we'll never know the truth. The police made 

up their minds. They ignored the other names. How 

unreasonable is it for them to investigate and do this, 

do it right? They failed to fingerprint the phone. . . . 

The lack of professionalism, the intimidation, the 

coercion, that's the problem with this case. And, that's 

– and the problem is two self-motivated liars who are 

willing to sacrifice an innocent man so they can get 

out earlier.

The comments the prosecutor made that defendant contends were 

prejudicial are:

Well ask yourself, I've tried enough of these cases and 

when I get fingerprints, this is always what's said. 

Well his fingerprint's in the car, but all that shows you 

is that he was sitting in the car at some point. Well his 

DNA's on a water bottle, but all that shows you is that 

at some point he drank from that water bottle. It 

doesn't put him in the car, fingerprints don't put him in 

the car on the fifth [of August], or the second [of 

August]. DNA on a water bottle doesn't put him in the 

7-Eleven, or the Wendy's, or the second 7-Eleven on 

any date.

Defendant's specific objection to the prosecutor's comments is that the 

prosecutor made reference to her personal experiences, and belittled defendant's 

claim there was no corroborative physical evidence linking him to the crimes. 

The State counters that the prosecutor was merely responding to defendant's 

criticism of the State for failing to gather fingerprint and DNA evidence.
18 A-5301-15T4

Even if a prosecutor's comment during summation exceeds the bounds of 

proper conduct, "[a] finding of prosecutorial misconduct does not end a 

reviewing court's inquiry because, in order to justify reversal, the misconduct 

must have been 'so egregious that it deprived the defendant of a fair trial.'" State 

v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 

(1999)). "Our task is to consider the 'fair import' of the State's summation in its 

entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting State v. 

Wakefield, 190 N.J. 397, 457 (2007)).

Having reviewed the record, we are satisfied the prosecutor's comment 

observing that defendant's argument has been raised by defendants in other 

matters did not deprive him of a fair trial. The thrust of the prosecutor's remarks 

– that DNA or fingerprint evidence would not have been probative – was fair 

comment made in response to defendant's summation. See State v. Engel, 249 

N.J. Super. 336, 379 (App. Div. 1991) (holding the prosecutor's statements in 

response to an attack upon the integrity of the State's investigation was not 

error). We are satisfied the prosecutor's comments here do not provide any basis 

to overturn the verdicts.
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D

Defendant attacks the court's failure to merge certain offenses. With 

respect to the incident on August 5, 2012, among other things, the jury found 

defendant guilty of second-degree conspiracy to commit robbery and thirddegree attempted theft. The court did not merge the latter two offenses. 

Defendant was sentenced to a seven-year term of imprisonment for the 

conspiracy conviction and to a four-year term for the attempted theft conviction. 

The court ordered both convictions to run consecutively to the fifteen-year term 

of imprisonment imposed for the first-degree robbery committed at the 7-Eleven 

on August 2, 2012, as well as to the fifteen-year term of imprisonment imposed 

for the first-degree robbery committed at Wendy's, on August 3, 2012.

On appeal, defendant maintains the trial court should have merged the 

conviction for conspiracy with the one for attempted theft. The State agrees 

both offenses should have been merged, but contends the conviction for 

attempted theft should have been merged with the one for conspiracy.

If a defendant has been convicted of an offense and conspiracy to commit 

the same offense, the conspiracy conviction merges with the completed offense. 

State v. Soltys, 270 N.J. Super. 182, 189 (App. Div. 1994); State v. Hardison, 

99 N.J. 379, 385-86 (1985). The reason the conspiracy conviction merges with 
20 A-5301-15T4

the one for the substantive offense is that the "conviction of the completed 

offense will adequately deal with the conduct." Hardison, 99 N.J. at 386. 

However, if a defendant is convicted of conspiracy to commit an offense and a 

lesser-included offense, the conviction of the lesser included offense merges 

with the conviction for conspiracy to commit such offense. See State v. Connell, 

208 N.J. Super. 688, 695 (App. Div. 1986).

Here, it is not disputed a theft or attempted theft is required for a robbery 

conviction. State v. Farrad, 164 N.J. 247, 257 (2000). Both theft and attempted 

theft are lesser-included offenses of the crime of robbery under N.J.S.A. 2C:1-

8(d), because both are "established by proof of the same or less than all the facts 

required to establish the commission of the offense charged." N.J.S.A. 2C:1-

8(d)(1). Accordingly, here, the conviction for attempted theft merges with that 

of conspiracy to commit robbery, and the sentence imposed for the conviction 

of attempted theft must be and is vacated.

Defendant was convicted of various aggravated assault charges arising out 

of the first two incidents. Defendant argues the convictions for aggravated 
21 A-5301-15T4

assault arising out of these two incidents should have been merged with the 

corresponding robbery conviction arising out of each robbery.

1

The State agrees the aggravated assault convictions should merge, with 

the exception of counts three and four, which pertain to two of the three 

aggravated assaults committed at the 7-Eleven on August 2, 2012. The State 

maintains those two assaults were unrelated to the commission of the robbery. 

We disagree.

Our review of the record reveals the assaults charged in counts three and 

four were inflicted to effectuate the robbery; therefore, these two counts must 

merge with the robbery conviction that arose out of the incident at the 7-Eleven

on August 2, 2012. Therefore, counts three, four, and five shall merge with 

count one, the count charging defendant with committing a robbery at the 7-

Eleven on August 2, 2012. Counts twelve, thirteen, fourteen, and fifteen shall 

merge with count ten, the count charging defendant with committing a robbery 

at Wendy's. The sentences imposed for counts three, four, five, twelve, thirteen, 

fourteen, and fifteen are vacated. As a practical matter, the merger of these seven 

 

1

 The counts charging defendant with aggravated assault that arose out of the 

incident at 7-Eleven on August 2, 2012 are three, four, and five. Those counts 

charging him with this offense that arose out of the incident at Wendy’s on 

August 3, 2012 are counts twelve, thirteen, fourteen, and fifteen.
22 A-5301-15T4

counts does not affect the aggregate sentence, as the court ordered the sentences 

imposed for aggravated assault to run concurrently.

Finally, defendant contends his sentence was excessive. Defendant was 

sentenced to an aggregate term of forty-one years. The consecutive sentences 

were: fifteen years for first-degree robbery of the 7-Eleven on August 2, 2012 

(count one); fifteen years for first-degree robbery of Wendy's on August 3, 2012

(count ten); four years for third-degree attempted theft at the 7-Eleven on August 

5, 2012 (count twenty-one "A"); and seven years for second-degree conspiracy 

to commit robbery at the 7-Eleven on August 5, 2012 (count twenty-two). With 

the merging of the two latter convictions, defendant's aggregate term of 

imprisonment is thirty-seven years; the sentences on the remaining counts are to 

run concurrently.

We are satisfied from our review of the record that the sentence was not 

excessive. As for the consecutive terms of imprisonment, the court sentenced 

defendant in the middle range for the first-degree offenses and at essentially the 

midpoint range for the second-degree offense.

Although defendant was only nineteen years of age when he committed 

the subject offenses and had not been convicted of any offenses as an adult, the 

trial court considered defendant's juvenile history. The court noted defendant 
23 A-5301-15T4

had been adjudicated a delinquent for burglary in 2008 and robbery in 2010, and 

served time for the latter offense at the State Home for Boys in Jamesburg for 

approximately thirteen months before being released on juvenile parole. While 

on parole he committed the subject offenses.

The court properly weighed and considered each aggravating and 

mitigating factor, see N.J.S.A. 2C:44-1(a) and (b), as well as the factors in State 

v. Yarbough, 100 N.J. 627, 643-44 (1985). The court's reasons for imposing the 

sentence were supported by competent and credible evidence in the record. See

State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Cassady, 198 N.J. 165, 180

(2009) (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)).

We have considered defendant's remaining arguments, and determine they 

lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

The convictions are affirmed. The sentences are affirmed with the 

exception that the conviction for attempted theft shall merge with the conviction 

for conspiracy to commit robbery, and the sentence imposed for the conviction 

of attempted theft is vacated. As for the aggravated assault convictions, counts 

three, four and five shall merge with count one, and counts twelve, thirteen, 

fourteen, and fifteen shall merge with count ten. The sentences imposed for 

counts three, four, five, twelve, thirteen, fourteen, and fifteen are vacated. The 
24 A-5301-15T4

matter is remanded to the trial court so it may correct the judgment of conviction 

in accordance with this opinion.

Affirmed in part, and remanded for further proceedings consistent with 

this opinion. We do not retain jurisdiction.