SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2309-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE L. TREAKLE, a/k/a 

LAWRENCE WELCH, JAMES 

MAYS, MAURICE SMITH,

MAURICE TREAKLE, M. 

LINWOOD TREAKLE, and 

HAKIM, 

Defendant-Appellant.

___________________________

Argued March 3, 2021 – Decided July 23, 2021

Before Judges Ostrer and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 17-11-2379.

Simone M. Silva-Arrindell, Designated Counsel, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Simone M. Silva-Arrindell, 

on the briefs).

NOT FOR PUBLICATION WITHOUT THE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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Nicole Lynn Campellone, Assistant Prosecutor, argued 

the cause for respondent (Damon G. Tyner, Atlantic 

County Prosecutor, attorney; Nicole Lynn Campellone, 

of counsel and on the brief).

PER CURIAM

A jury convicted defendant Maurice Treakle of first-degree robbery, 

N.J.S.A. 2C:15-1(a)(1); third-degree possession of a knife for an unlawful 

purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a knife, 

N.J.S.A. 2C:39-5(d). Treakle appeals, contending primarily that the trial court 

committed plain error by omitting an identification charge and by delivering a 

flawed accomplice-liability charge. We disagree and affirm.

I.

Defendant's convictions stem from a violent mugging in Atlantic City. 

Late one afternoon, two men robbed Christopher Shirazi at knifepoint, seizing

Shirazi's cellphone and over three hundred dollars. The State contends that 

defendant was one of the robbers. When police confronted him mere moments 

after the robbery, he possessed Shirazi's cellphone and had just discarded a 

knife.

At trial, Shirazi testified that on August 26, 2017, he had just completed 

"a gambling binge" and was walking with "a beautiful girl" when "two guys . . . 
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jump[ed]" him.

1

 One of them placed a hand on Shirazi's throat and menaced 

him with a black-handled "simple pocket" knife. Terror-stricken, Shirazi gave 

them his cellphone and $326.

When he testified at trial, Shirazi was not altogether clear about which 

robber took which item. At one point, he agreed that one robber took the money 

and the other took the cellphone. But he later said that because he was "watching 

the knife," he "didn't know who took" either item.

In any case, after Shirazi relinquished his property, the knife-wielding

robber "clocked" Shirazi in the face, knocking him down. He fell on his hip, his 

glasses fell to the side, and blood poured down his face. He shut his eyes (at 

least partially), pretending to be unconscious. He recalled that about two 

minutes passed. 

Meanwhile, one of the robbers removed Shirazi's belt and patted his rear, 

evidently to see if he hid other valuables there. At some point, Shirazi stealthily 

looked for (and found) his glasses. When Shirazi got up from the ground, 

"[b]oth men were there." Shirazi raced from the scene and yelled for help. 

1

 Shirazi's testimony was not always clear; at times, he appeared to contradict 

himself. We attempt to derive a coherent narrative from his testimony. 
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But within moments, he saw the robbers again. He proceeded to chase the 

one he thought had threatened him with the knife, whom he believed to have his 

money and cellphone. 

Meanwhile, his call for help apparently prompted someone to call the 

police to report a fight between two men. Officers Thomas Gilardi and David 

White responded. Officer Gilardi testified that they were looking for the men

when defendant ran "up towards [the] police car," with Shirazi in hot pursuit. 

Defendant was carrying a green hoodie, but after the officers stopped and exited 

the car, he dropped the hoodie near the back of the car. 

The officers separated the two men. Gilardi dealt with the distraught 

Shirazi, who kept telling him that defendant had a knife. Gilardi's body-cam 

recording showed Shirazi pointing to defendant and saying that defendant 

"robbed him and had punched him."

2

 Defendant did not have a knife on his 

person — but when Gilardi investigated the discarded hoodie, he found "a green 

folding knife" "sort of just wrapped up underneath" it. 

2 The video was admitted into evidence and shown to the jury without audio. 

Gilardi narrated portions of the video without objection. Cf. State v. Singh, 245 

N.J. 1, 17 (2021) (stating that it was error for a police detective to refer to a 

person depicted in a surveillance video as "the defendant"). Neither party 

included the video in the record on appeal.
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But defendant did have something else on his person: Shirazi's cellphone. 

According to Officer White's testimony, defendant claimed that Shirazi "threw 

the phone at him trying to assault him, and [defendant] caught it and put it in his 

pocket."

3

Shirazi was convinced that he had the right man. He testified that "the 

one that was holding [his] neck with the knife" was the same man "that got 

locked up by the police." However, during his direct examination, he was unable 

to identify anyone in the courtroom as his assailant. 

But after a break, Shirazi saw defendant returning to the courtroom in 

shackles. Then, during cross-examination, Shirazi started pointing at defendant

while referring to his attacker as "[h]e" or "[h]im" — perhaps implying that at 

that point, he did identify defendant as one of the robbers. The judge offered to 

provide, or at least to "consider" providing, a corrective jury instruction, but 

defense counsel declined, fearing that a corrective instruction "would just 

magnify this identi[t]y issue."

In closing, defense counsel presented a misidentification defense. He 

stated, "[T]here's no evidence that my client was there," and told the jurors that 

3

 In his statement professing innocence before sentencing, defendant asserted 

that he had purchased the cellphone from a woman — allegedly, the woman who 

had accompanied Shirazi.
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"even if by some stretch . . . my client was there," they had to determine "what 

. . . his intent" was. To support the misidentification theory, defense counsel 

made three points. First, Shirazi failed to identify anyone in the courtroom. 

Second, defendant allegedly had the cellphone, not the money, but Shirazi 

allegedly said that the knife-wielder took only the money; Shirazi also said that 

he chased the knife-wielder. Third, police seized a green-handled knife, but

Shirazi said that the robber's knife had a black handle.

After the summations, the judge charged the jury. Two aspects of the 

instructions are pertinent to this appeal: the court's accomplice-liability 

instruction and the court's omission of an identification charge. While 

explaining accomplice liability in the context of robbery, theft from the person

(a lesser-included charge), and the applicable weapons offenses, the judge 

repeatedly used the phrase "and/or." He stated, "In order to find the defendant 

guilty of the specific crimes charged as an accomplice, the State must prove . . . 

that an unknown male committed the crime of robbery and/or theft from the 

person and/or possession of a weapon for an unlawful purpose and/or unlawful 

possession of a weapon," and "that this defendant solicited the unknown person 

to commit those offenses and/or did aid or agree or attempt to aid him in 

planning or committing those offenses." The State had to prove, too, "that this 
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defendant's purpose was to [promote] or facilitate the commission of those 

offenses," and that "defendant possessed the [relevant] criminal state of mind." 

The judge instructed the jurors that if they found "the defendant, with the 

purpose of promoting or facilitating the commission of the offenses, " to have

"solicited an unknown, identified [sic] other person to commit it, or aided or 

attempted to aid him or her in planning or committing those offenses," they had 

to "consider him as having committed those offenses himself." Nonetheless, "to 

convict the defendant as an accomplice to the specific crime alleged," the jurors 

had to "find that the defendant had the purpose to participate in that particular 

crime. He must act with the purpose of promoting or facilitating the commission 

of the substantive offenses with which he is charged." They could also decide 

that the defendant was not "an accomplice . . . [in] the specific crime charged,"

but instead acted "with the purpose of promoting or facilitating the commission 

of some lesser offense than the actual crimes charged in the indictment."

In summarizing those instructions, the court repeatedly used the "and/or"

formulation:

In sum, in order to find the defendant guilty of 

the crimes of robbery and/or theft from the person 

and/or possession of a weapon for an unlawful purpose 

and/or unlawful possession of a weapon the State must 

prove the following beyond a reasonable doubt: (1) that 

the unknown or unidentified male committed those 
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crimes, that is, robbery and/or theft by unlawful taking 

and/or possession of a weapon for an unlawful purpose 

and/or unlawful possession of a weapon; (2) that this 

defendant solicited the unknown person to commit 

those crimes and/or did aid or agree to aid him in 

planning or committing those offenses; (3) that this 

defendant's purpose was to promote or facilitate the 

commission of those offenses; (4) that this defendant 

possessed the criminal state of mind that was required 

to be proved against the person who actually committed 

the criminal act.

If you find the State has proven each one of the 

elements described above beyond a reasonable doubt, 

then you must find the defendant guilty of robbery 

and/or theft from the person and/or possession of a 

weapon for an unlawful purpose and/or unlawful 

possession of a weapon. If, on the other hand, you find 

the State has failed to prove one or more of these 

elements beyond a reasonable doubt, you must find the 

defendant not guilty of robbery and/or theft from the 

person and/or possession of a weapon for an unlawful 

purpose and/or unlawful possession of a[] weapon.

The judge did not deliver the model charges on out-of-court or in-court 

identification, but he did touch on the misidentification issue when delivering 

the model charge on third-party guilt:

The defendant contends that there is evidence 

before you indicating that someone other than he may 

have committed the crime or crimes and that evidence 

raises a reasonable doubt with regard to the defendant's 

guilt. In this regard I charge you that a defendant in a 

criminal case has the right to rely on any evidence 

produced at trial that has a rational tendency to raise a 

reasonable doubt with respect to his own guilt[].
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. . . [T]here is no requirement that this evidence 

proves or even raises a strong probability that someone 

other than the defendant committed the crime. You 

must decide whether the State has proven the 

defendant's guilt beyond a reasonable doubt, not 

whether the other person or persons may have 

committed the crimes.

Just before concluding the jury instructions, the judge invited counsel to 

offer corrections or clarifications at sidebar. Although parts of the conference 

were inaudible, the discussion generally related to an "identification charge." 

Defense counsel evidently suggested that the court instruct the jury on Shirazi's 

failure to make an in-court identification: "I know an identification was not 

made in court and there's the identification charge. For the most part it's an 

identification is made." Apparently ignoring Shirazi's out-of-court 

identification, defense counsel continued, "In this case it was not made. It may 

be a little too late to put it -- ". After an inaudible comment from one of the 

prosecutors, defense counsel clarified that he was thinking of an instruction 

regarding Shirazi's failure to make an in-court identification, stating, "No, for 

his lack of identifying him in court." After some more not entirely audible 

remarks, the prosecutor added that she believed the "10-page ID charge" applied 

— evidently referring to the full charge that included out-of-court identification. 
10 A-2309-18

Defense counsel did not respond to that statement, and the judge's subsequent 

remarks were inaudible.

After sending the jurors to deliberate, the judge returned to the 

identification issue, asking defense counsel, "I think you queried with regard to 

an identification charge, but I think that applies to out of court identification. Is 

that what we decided or?" Defense counsel again referred to an instruction on 

the absence of an in-court identification: "Out of court or where the 

identification was actually made in the court. When I was reading it I did not 

see the reference made to a lack of in-court identification or not being able in 

court to make that identification." The judge then said, "Well again, I let you 

guys take a look at that charge before I read it to the jury. I mean at this point 

they've been charged. I do believe, and it's appropriate as part of your argument 

that you did make that argument."

Later, the jury sent the judge a question: "[I]f we believe the second 

assailant was the heavy and held the knife, punched, et cetera, is our client guilty 

as if it were him on all charges, or is he not guilty on all charges?" The 

prosecutor asked the judge to "remind the jury that each offense with which the 

defendant is charged needs to be considered in terms of accomplice liability,"
11 A-2309-18

and defense counsel asked the judge "to direct their attention to the lesser 

included section" concerning "robbery and the theft from the person."

In response to the jury's question, the judge provided a clear instruction 

on accomplice liability, eschewing the "and/or." He said, "[I]f you're not 

considering that Mr. Treakle did it but whether the other person did it and Mr. 

Treakle is responsible, number one, you have to decide whether the other guy 

did it or not, okay? Did the other person commit the offense of robbery?" Then 

he expanded his explanation, discussing individual charges and lesser-included

offenses:

There's robbery as it's defined in 1(a), and then 1(b) is 

with the weapon. So you need to decide whether the 

unknown co-defendant committed either of those 

offenses. If not, then you need to decide whether the 

unknown defendant committed the offense of theft. 

You also need to decide in considering the weapons 

charges whether the unknown defendant committed the 

offense of possession of a weapon for an unlawful 

purpose or unlawful possession of a weapon. So each 

individual charge, number one, it's alleged that Mr. 

Treakle did it, but it's also alleged that the co-defendant 

did it and Mr. Treakle is responsible, and you need to 

consider each one individually.

Now back to the bottom of 18, top of 19. Number 

one, if we're considering accomplice liability, you have 

to decide whether the accomplice committed the

offense that you're talking about. Number two, you 

need to decide whether this defendant, who is Mr. 

Treakle, solicited him to commit it or did aid or agree 
12 A-2309-18

to attempt to aid him. So did Mr. Treakle, did the codefendant commit the offense and did Mr. Treakle 

solicit or aid him in the commission of the offense.

Number three, you need to decide whether Mr. 

Treakle's purpose was to promote or facilitate the 

commission of the offense. And then number four, you 

need to decide whether the defendant possessed the 

criminal state of mind that's required to be proved 

against the person who actually committed the offense.

So that is the shorthand language. The other 

language that I want to direct your attention to is that 

even if you decide that the co-defendant is guilty of let's 

say first degree or second degree robbery, you could 

still find Mr. Treakle guilty of one of the lesser included 

offenses. If you find the co-defendant guilty of first 

degree robbery, which again is the robbery with the 

weapon, Mr. Treakle, assuming that the other 

requirements of the statute have been met for 

accomplice liability, he may not be guilty of first degree 

robbery; he may be guilty of second degree robbery 

because his accomplice status only goes to the robbery 

but not the weapon. And in the event that you find him 

not guilty of the second degree robbery, then you could 

also find him guilty, you need to consider the theft 

charge, which means that he is guilty as an accomplice 

on a theft but not the robbery and all of those additional 

elements.

Later that day, the jury returned guilty verdicts on all counts.

Defense counsel subsequently filed a motion for a new trial or a judgment 

notwithstanding the verdict, or, in the alternative, for a judgment molding the 

verdict. But the court denied the motions. The court also denied the State's 
13 A-2309-18

motion for an extended term as a persistent offender, see N.J.S.A. 2C:44–3(a),

although defendant's extensive criminal record made him eligible for one. 

On count one (first-degree robbery), the court sentenced defendant to 

fifteen years with eighty-five percent parole ineligibility, to be followed by five 

years of parole supervision. The court merged the possession-of-a-weapon-foran-unlawful-purpose charge, but not the simple possession charge, into the 

robbery count. On the simple possession charge, the court sentenced Treakle to 

eighteen months, concurrent to the fifteen years. 

II.

Defendant raises the following five issues (which his reply brief largely 

reiterates) on appeal.

POINT I

THE TRIAL COURT COMMITTED PLAIN ERROR 

WHEN IT FAILED TO GIVE THE JURY AN

INSTRUCTION REGARDING THE STATE'S

BURDEN TO PROVE IDENTIFICATION. (NOT 

RAISED BELOW).

POINT II

THE TRIAL COURT COMMITTED PLAIN ERROR 

BY INCLUDING THE AMBIGUOUS PHRASE 

"AND/OR" IN THE ACCOMPLICE LIABILITY 

JURY INSTRUCTION, THEREBY DEPRIVING MR. 

TREAKLE OF HIS RIGHT TO A FAIR TRIAL. (NOT 

RAISED BELOW).
14 A-2309-18

POINT III 

BECAUSE THE EVIDENCE WAS INSUFFICIENT 

TO PROVE BEYOND A REASONABLE DOUBT 

THAT MR. TREAKLE WAS GUILTY OF FIRSTDEGREE ROBBERY, THE TRIAL COURT SHOULD 

HAVE ENTERED A JUDGMENT OF ACQUITTAL 

ON COUNT ONE.

POINT IV

IN THE ALTERNATIVE, THE APPEL[L]ATE 

DIVISION SHOULD MOLD MR. TREAKLE'S 

FIRST-DEGREE ROBBERY CONVICTION TO A 

LESSER INCLUDED OFFENSE.

POINT V 

FAILURE TO MERGE MR. TREAKLE'S WEAPONS 

CONVICTIONS WITH HIS FIRST-DEGREE 

ROBBERY CONVICTION WARRANTS 

RESENTENCING. (PARTIALLY RAISED BELOW).

A.

We first consider defendant's contention that the trial court committed 

plain error by failing to deliver an identification instruction.

A trial court must provide an identification instruction if "identification is 

a 'key issue.'" State v. Cotto, 182 N.J. 316, 325 (2005) (quoting State v. Green,

86 N.J. 281, 291 (1981)). Identification is "a key issue" if "[i]t [is] the major 

. . . thrust of the defense," especially if "the State relies on a single victimeyewitness." Ibid. (alterations in original).
15 A-2309-18

Failure to provide that instruction may be plain error. Id. at 326. Plain 

error is error "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. Macon, 57 

N.J. 325, 336 (1971); see also State v. G.E.P., 243 N.J. 362, 389-90 (2020)

(applying this plain error standard). 

Defendant bears the burden to show plain error, State v. Morton, 155 N.J. 

383, 421 (1998), and this burden is not insignificant: even a truncated 

identification instruction will, at times, foil a claim of plain error. Cotto, 182 

N.J. at 326-27. Furthermore, "[i]f [a] defendant does not object to the charge at 

the time it is given, there is a presumption that the charge . . . was unlikely to 

prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012). 

An argument that an omitted identification charge was plain error "must 

be evaluated 'in light of the overall strength of the State's case.'" State v. 

Sanchez-Medina, 231 N.J. 452, 468 (2018) (quoting State v. Galicia, 210 N.J. 

364, 388 (2012)); see also Cotto, 182 N.J. at 326 (stating that "[t]he 

determination of plain error depends on the strength and quality of the State's 

corroborative evidence," not "on whether defendant's misidentification 

argument is convincing"). "[I]t is possible that the corroborative evidence 

against a defendant may be sufficiently strong that the failure to give an 
16 A-2309-18

identification instruction does not constitute plain error . . . ." State v. Davis, 

363 N.J. Super. 556, 561 (App. Div. 2003). 

In Cotto, the Court held that "the strength and quality of the State's 

corroborative evidence rendered harmless any deficiency in the instruction and 

preclude[d] a finding of plain error." Id. at 327. In that case, the victim 

identified the defendant as her former boyfriend. Ibid. Other evidence 

corroborated her identification: the defendant called the victim's child by name 

and referred to a hiding spot where the victim kept money. Ibid. The Court also 

noted that "[a]lthough the court . . . did not use the word 'identification'" in its 

instruction, the judge did instruct the jury that the State had to prove that 

defendant was the wrongdoer. Id. at 326-27.

By contrast, in Sanchez-Medina, the Court held that the State did not 

present enough corroborating evidence to excuse the trial court's failure to 

deliver an identification instruction. 231 N.J. at 469. In Sanchez-Medina, only 

one of four victims identified the defendant; no forensic evidence linked the 

defendant to the crime; victims' descriptions of their assailants and of the attacks

varied; and the defendant's statement to police (which he later recanted) offered 

"some corroboration," but lacked details. Id. at 468-69. When combined with 

the court's failure to tell the jurors "to ignore provocative evidence about 
17 A-2309-18

defendant's immigration status," this error prompted the Court to vacate the 

convictions and remand for a new trial. Id. at 469. The trial court also had

instructed the jury that the State had the burden to prove "defendant was the 

actor who committed the crimes," id. at 468 n.3, but this clarification was not 

enough to offset the court's omissions.

Here, misidentification was the major thrust of the defense. Therefore, 

the court should have given an identification instruction, even without a defense 

request. And Shirazi's in-court gesturing toward defendant increased the need 

for such an instruction.

However, we are satisfied that the corroborating evidence was sufficient 

to excuse the court's omission. Most significantly, within moments of the 

robbery, defendant admitted to police that he had Shirazi's cellphone on his 

person, and police found a "folding knife" that defendant had discarded near the 

police vehicle. Defendant's possession of both the instrument of the robbery and 

its fruits was compelling evidence corroborating Shirazi's out-of-court 

identification. Defendant's claim that Shirazi threw his cellphone at him was 

implausible at best. And, crucially, defendant not only possessed the knife, but 

he also discarded it in police presence, thus demonstrating a consciousness of 
18 A-2309-18

guilt. Shirazi's mistake regarding the knife-handle's color was a minor detail;

he could easily have mistaken dark green for black.4

Furthermore, because the police did not engage in an identification 

procedure, only instructions regarding so-called estimator variables, see State v. 

Henderson, 208 N.J. 208, 247 (2011), would have been relevant in this case. 

And, had the court educated the jury on how those variables affect identification, 

the jury may well have been even more convinced that Shirazi correctly 

identified defendant as one of his attackers. Although stress, the presence of a 

weapon, and possible cross-racial bias may have affected Shirazi's ability to 

accurately identify defendant as his assailant, other estimator variables may have 

strengthened Shirazi's perception. The attack lasted long enough to enable 

Shirazi to get a good look at his attacker, who was not wearing a disguise or 

mask. The assailants were also close by and, because it was the afternoon, the

lighting was good. There was no time for Shirazi's memory to decay, and the 

assailants were still nearby when Shirazi spotted them and gave chase. Finally, 

no evidence suggests that Shirazi was intoxicated. See id. at 261-71 (discussing 

estimator variables and their impact on identification accuracy).

4

 The State described the knife as "dark in color"; the knife was in evidence at 

the trial, thus permitting the jurors to draw their own conclusions. Neither party 

included a color photograph of the knife in the record on appeal.
19 A-2309-18

Furthermore, during the third-party guilt instruction, the court instructed 

the jury to consider the possibility that someone other than defendant committed 

the crimes. And, in the accomplice-liability instruction, the court repeatedly 

instructed the jury that, in order to render a guilty verdict, it had to find "this 

defendant" guilty of the elements that the court outlined. 

Therefore, we conclude the omission of an identification instruction was 

not plain error.

B.

Next, we consider defendant's contentions regarding the accompliceliability instruction. We conclude that by using "and/or" repeatedly, the trial 

court injected unacceptable ambiguity into its prepared instruction on 

accomplice liability; however, the court cured any confusion by restating the 

instruction, without "and/or," when responding to the jury's question.

The trial court's accomplice-liability instruction mirrored the instructions

that we found impermissibly confusing in State v. Gonzalez, 444 N.J. Super. 62,

73-76 (App. Div.), certif. denied, 226 N.J. 209, 209 (2016). Although the 

Supreme Court denied certification, the Court commented that it agreed with our 

ruling that "and/or" "injected ambiguity into the charge," while limiting "[t]he 

criticism of the use of 'and/or'" in jury instruction "to the circumstances" of that
20 A-2309-18

case. Ibid. In Gonzalez, as here, there was no way to determine "whether, with 

each utterance of 'and/or,' the jury was able to properly interpret it as 'and' when 

the judge should have said 'and,' and 'or' when the judge should have said 'or.'"

444 N.J. Super. at 72. We found "the judge's repeated use of the phrase 'and/or'

. . . so confusing and misleading as to engender great doubt about whether the 

jury was unanimous . . . or whether the jury may have convicted defendant by 

finding the presence of less than all the elements the prosecution was required 

to prove." Id. at 71. We would reach the same conclusion here, had the judge

said nothing more on the subject of accomplice liability.

But when deciding if there was plain error, we must read the charge "as a 

whole" and avoid considering parts in isolation. State v. Jordan, 147 N.J. 409, 

422 (1997). Here, the jury requested clarification of the accomplice-liability 

charge, and the trial judge responded appropriately. See State v. Savage, 172 

N.J. 374, 394 (2002) (stating "[i]t is firmly established that '[w]hen a jury 

requests a clarification,' the trial court 'is obligated to clear the confusion'")

(second alteration in original) (quoting State v. Conway, 193 N.J. Super. 133, 

157 (App. Div. 1984)). The court's clarification avoided the ambiguity that 

plagued the initial charge and removed the possibility that the jury would render 
21 A-2309-18

a non-unanimous verdict or a verdict based on fewer than all essential elements 

of a crime.

C.

Defendant's arguments that the trial court should have entered a judgment 

of acquittal or that the appellate court should mold the verdict on the first-degree 

robbery charge lack sufficient merit to warrant discussion in a written opinion. 

R. 2:11-3(e)(2). Ample, if not overwhelming, evidence supported the jury's 

verdict. See State v. Fuqua, 234 N.J. 583, 590-91 (2018) (stating that a trial 

court must deny a motion to acquit even if, after "giving the State the benefit of 

all of its favorable testimony as well as all of the favorable inferences which 

reasonably could be drawn therefrom," the evidence is merely "sufficient" to

support the verdict); State v. Lopez, 187 N.J. 91, 103 (2006) (stating that where 

there is enough "evidence to create a jury issue" regarding the greater offense, 

"molding the verdict to the lesser offense . . . [is] unwarranted").

Lastly, we agree with defendant's contention (with which the State 

concurs) that the trial court should have merged his fourth-degree unlawfulpossession-of-a-knife conviction with his robbery conviction. An essential 

element of the fourth-degree offense is possession of an item "under 

circumstances not manifestly appropriate for such lawful uses as it may have." 
22 A-2309-18

N.J.S.A. 2C:39-5(d). Here, the only evidence of such circumstances pertained 

to defendant's use of the knife in a robbery. Therefore, the two offenses should 

merge, just as a conviction for possession of a weapon for an unlawful purpose

must merge into the substantive offense where the defendant's only unlawful 

purpose is to use the weapon in committing the substantive offense. See State 

v. Romero, 191 N.J. 59, 79-80 (2007) (requiring merger of conviction for 

possession of a weapon for an unlawful purpose into conviction for robbery).

Affirmed as to conviction; remanded for resentencing. We do not retain 

jurisdiction.