### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3297- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. ALTURIK FRANCIS, a/k/a ALTURIC FRANCIS, ALTURIC MARTIN, ALTERICK A. FRANCIS, ALTURIK MARTIN, and ALTRIK FRANCIS, Defendant-Appellant.

_______________________________

Submitted January 17, 2024

– Decided February 20, 2024 Before Judges Whipple and Paganelli. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05- 06 -0707. Alturik Francis, appellant pro se. William A. Daniel, Union County Prosecutor, attorne y for respondent (Meredith L. Balo, Assistant Prosecu tor, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3297

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Defendant, Alturik Francis, appeals from a July 1, 2021 order denying his motion to correct an illegal sentence. Since we co nclude he was denied his right

to have oral arg ument on the motion we vacate and remand

. The facts relat ing to defendant's convictions are fully recounted in our prior opinion s on defendant's direct appeal, State v. Francis , No. A- 1741

- 09 (App. Div. Aug. 7, 2012) (slip op. at 1), and on de fendant' s first petition for
p ost -conviction relief (PCR) , State v. Francis , No. A- 2825 -15 (App. Div. Dec. 12, 2017) (slip op. at 1)

. Here, we recite only the facts that are necessary to provide context for our opinion. Defendant was convicted of breaking into Majoly Collins's apartment, robbing her, raping her at knife point, stabbing her to death, smothering to death her two young childre n, and attempting to stab to death a fourth victim. Francis , slip op. at 1 (App. Div. Aug. 7, 2012). After merger, defendant was sentenced to three consecutiv e terms of life in prison, a twenty-year consecutive term, and a concurrent term of twenty years. Ibid. In defendant's direct appeal, he raised several iss ues including his sentence being improper and excessive. Id. at 3. In our opinion, we concluded there was no abuse of the judge's discretion in imposing the sen tence and no merit in defendant's argument. Id. at 38.3 A- 3297

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After we affirmed the denial of defendant's petitio n for PCR , without an evidentiary hearing, Francis, slip op. at 6 (App. D iv. Dec. 12, 2017) , he filed a pro se motion to correct an alleged illegal sentenc e. In a fourteen-page written decision the judge denied defendant's motion. In r eciting the procedural history, the judge indicated "[t]he parties . . . consented to the motion being addressed on the papers." However, it is undisputed that oral argument was sc heduled by the judge's chambers and defendant 's "[c]ourt appointed attorney informed him that he would have the opportunity to advance his argument via the [Z]oom hearing. " There was no consent to have the motion decided on the papers. Defendant argues his rights were violated because he was deni ed oral argument on the motion. The State contends defendant's rights were not deni ed, despite no opportunity for oral argument, because the motion judg e had discretion whether to grant oral argument, citing State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001). The State argues there was no abuse of discretion because: (1) "defendant's argument was wholly without merit, and oral argument was not necessary for the court to make its ruling"; and (2 ) "the court clearly put its reasons for denying defendant's motion on the recor d . . . ."4 A- 3297

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We are not convinced by the State's argument. The merits of defendant's argument and whether substantively the judge addres sed the merits is of no

moment. "O ral advocacy is a fundamental aspect of our criminal justi ce system and should be encouraged, preserved, and protected. " State v. Parker, 459 N.J. Super. 26, 31 (App. Div. 2019). If a "judge . . . reach[es ] the determination that the arguments presented in the papers do not warran t oral argument, the judge should provide a statement of reasons that is tailo red to the particular application, stating why the judge consider[ed] ora l argument unnecessary." State v. Parker, 212 N.J. 269, 282 (2012). That wa s not done here. Therefore, we are compelled to vacate the order and remand the motion for further consideration. Although the judge here issue d a thoughtful decision, "[i]n an abundance of caution, we direct that th [e m otion] be remanded to a different judge . . . to avoid the appearance of bias or prejudice based up on the judge's prior inv olvement with the matter . . . ." Entress v. Entre ss, 376 N.J. Super. 125, 133 (App. Div. 2005); s ee also Graziano v. Grant, 326 N.J. Super. 328, 349 ( App. Div. 1999) (the power to remand to a different judg e "may be exercised when there is a concern that the trial judge has a poten tial commitment to his or her prior findings."); Luedtke v. Shobert, 342 N.J. Sup er. 202, 219 (App. Div. 2001)5 A- 3297

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("recogniz[ ing ] the time and effort the court put into the case" but expressing concern that judge would be in an "untenable positi on" on remand). Here, we express no opinion about the merits of the argument s. Vacated and remanded. We do not retain jurisdictio n.