NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5065-13T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLTON L. CLARK,
Defendant-Appellant.
_____________________________________________________
Argued May 11, 2016 – Decided June 26, 2017
Before Judges Fuentes, Koblitz and Kennedy.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 13-
05-1059.
Tamar Yael Lerer, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Ms. Lerer of counsel and on the brief).
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor argued
the cause for the respondent (Carolyn A.
Murray, Acting Essex County Prosecutor,
attorney; Mr. Ducoat of counsel and on the
brief).
PER CURIAM
Following a jury trial, defendant was found guilty of official
misconduct, N.J.S.A. 2C:30-2(a) (count one), and second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two). He was
thereafter sentenced to five years incarceration, subject to a
five-year period of parole ineligibility, pursuant to N.J.S.A.
2C:43-6.5 on count one, and to five years with an eighty-five
percent period of parole ineligibility and three years of post-
release supervision, pursuant to N.J.S.A. 2C:43-7.2 on count two.
The sentences were to run concurrent. He now appeals his
conviction and argues as follows:
POINT I
THE FATALLY FLAWED JURY INSTRUCTIONS IN THIS
CASE DEPRIVED THE DEFENDANT OF DUE PROCESS AND
HIS RIGHT TO A FAIR TRIAL AND NECESSITATE
REVERSAL OF HIS CONVICTIONS. (NOT RAISED
BELOW)
A. The Trial Court's Instruction On The Use
of Force, Which Was Legally Incorrect In
Regard To Both Charges And Eliminated The
State's Burden To Prove The Defendant's Guilt
On Each Element Of Each Charge, Necessitates
The Reversal Of The Defendant's Convictions.
i. Introduction
ii. The Trial Court Misinstructed The
Jury, Misstating The Law And Alleviating
The State Of Its Burden Of Proof.
2 A-5065-13T1
B. The Trial Court's Failure To Instruct The
Jury On Self-Defense Necessitates Reversal Of
The Defendant's Convictions.
POINT II
THE TRIAL COURT'S ERRONEOUS RULING PROHIBITING
PROFFERED TESTIMONY BY THE DEFENDANT'S EXPERT
NECESSITATES THE REVERSAL OF THE DEFENDANT'S
CONVICTIONS.
POINT III
THE TRIAL COURT'S INAPPROPRIATE DENIAL OF THE
DEFENDANT'S KNOWING AND VOLUNTARY WAIVER OF
HIS RIGHT TO A JURY TRIAL NECESSITATES THE
REVERSAL OF HIS CONVICTIONS.
POINT IV
DEFENDANT'S CONVICTIONS FOR AGGRAVATED
ASSAULT AND OFFICIAL MISCONDUCT SHOULD MERGE.
POINT V
THE DEFENDANT IS ENTITLED TO THREE ADDITIONAL
DAYS OF JAIL CREDIT.
We have considered these arguments in light of the record and the
law, and we affirm. We do, however, remand to correct the judgment
of conviction, as we explain hereinafter.
I.
We begin with a brief recitation of the facts established at
trial.
On August 26, 2011, after being reprimanded by defendant, a
corrections officer at the Essex County Correctional Facility, for
3 A-5065-13T1
cursing in the medical unit, the victim, an inmate, was instructed
by defendant to return to her housing pod for "lock in." Defendant
advised the victim she would be returned to her pod and her
medication would be brought to her. During the walk back to her
pod, the victim and defendant exchanged obscenities and
vulgarities, until finally defendant grabbed the victim from
behind by her shoulder outside of the victim's housing unit.
The victim testified that when defendant grabbed her arm, she
swung it to get him off; however, she did not intend to hit
defendant. Then, defendant began punching the victim repeatedly
in the face with a closed fist. At that point, she attempted to
defend herself by delivering counter-punches, before then trying
to move away. Initially, she remained standing until she was hit
"with great force," causing her to fall and eventually "black[]
out." Despite other officers trying to restrain defendant, he
continued to strike the victim while she was on the ground.
Defendant also dragged the victim by her hair into the "sally
port."
The victim testified that the next thing she remembered she
was being picked up and pressed against the wall by another
officer. She was then handcuffed and taken back to the medical
unit. As a result of the altercation, the victim suffered a
4 A-5065-13T1
fractured eye, a "busted" lip, a chipped tooth, and some of her
hair had been pulled out. Later, upon explaining the incident to
another officer, the victim was transported to East Orange General
Hospital, where she stayed for one week. Photos of the victim's
injuries were entered into evidence, and a videotape depicting the
incident was also played for the jury.
Defendant testified that when the inmate resisted lock in,
he attempted to place her in an "escort hold," which involves
"grab[bing] either the left or right shoulder and then [...]
grab[bing] [the] accompany[ing] arm [...] – it could be a wrist,
it could be a forearm, elbow." Defendant testified that the victim
resisted when he turned her towards the door, and based on his
training, he believed a punch from the inmate was imminent.
Defendant testified that he anticipated being hit with a fist, and
he explained that he blocked a strike, before moving forward to
restrain the inmate. Defendant testified that he blocked two
other attempts to punch him and concluded he needed to employ
physical force to avoid injury. He added that he continued
striking the inmate after he wrestled her to the ground because
she continued to resist.
Officer Allen, a corrections officer working in the female
pod at the time of the incident, essentially corroborated the
5 A-5065-13T1
testimony of the inmate, and explained that after the inmate tried
to pull away from the defendant, "[defendant] started to swing."
Officer Allen further corroborated the victim's testimony by
explaining that the victim tried to get away from defendant's
punches before eventually falling to the ground. There, defendant
continued hitting the victim despite her attempts to cover her
face.
Another corrections officer in the female pod, Officer
Hernandez, testified that prior to the physical altercation,
defendant was demanding that Officers Hernandez and Allen lock the
victim in, which was contrary to normal protocol. Officer Allen
and Officer Hernandez also testified that during the incident,
they both attempted to intervene. However, defendant pushed them
away and continued punching the victim.
Prior to trial, Judge Peter V. Ryan denied defendant's motion
for a bench trial, and ruled that defendant's proposed expert, Dr.
Richard Celeste, could not testify about the reasonableness of the
force used by defendant in the incident. However, Judge Ryan
ordered that following a N.J.R.E. 104 hearing, defendant's expert
could potentially testify about the training and education
defendant received regarding the use of force.
6 A-5065-13T1
II.
We first consider defendant's two arguments regarding the
jury instructions, including the trial judge's alleged improper
instructions on the use of force and his decision not to provide
a sua sponte charge for self-defense. Next, we consider the ruling
denying defendant's application to call an expert witness on the
reasonableness of defendant's force. We then briefly address
defendant's argument that the trial judge improperly denied his
waiver of a jury trial. Finally, we address defendant's remaining
two points, including his argument that the convictions for
official misconduct and assault should merge and that he is
entitled to three additional days of jail credit.
A. Use of Force Jury Instruction
Defendant argues for the first time on appeal that the trial
judge's jury instructions on the use of force deprived him of a
fair trial. Specifically, defendant contends that the trial judge
gave improper instructions that reduced the State's burden of
proof. The relevant portion of the jury instruction is reproduced
below:
The State contends the defendant Carlton
Clark's use of force was not for a legitimate
purpose, and defendant's use of force was not
in accordance with the Attorney General
Guidelines and the Essex County Department of
Corrections Policy regarding the use of force.
7 A-5065-13T1
If you find the State has failed to prove
beyond a reasonable doubt the force was not
in accordance with the Attorney General
Guidelines and the Essex County Department of
Corrections Policy regarding the use of force,
you must find the defendant Officer Carlton
Clark not guilty.
If, however, you find the State has proven
beyond a reasonable doubt the use of force by
defendant Carlton Clark was not in accordance
with the Attorney General Guidelines and the
Essex County Department of Corrections Policy
regarding the use of force, you must find the
defendant Carlton Clark guilty.
Defendant contends that this instruction directed the jury to
convict defendant of both counts if the State established that the
use of force was unauthorized. Defendant avers that the later
instruction on the elements of each offense does not mitigate the
error, and concludes that this error warrants reversal.
Defendant concedes that no objection was made to the jury
instruction, and therefore we review this argument under the plain
error standard, reversing only if such an error was clearly capable
of producing an unjust result. R. 2:10-2. The Supreme Court has
said that
[i]n the context of a jury charge, plain error
requires demonstration of "[l]egal
impropriety in the charge prejudicially
affecting the substantial rights of the
defendant sufficiently grievous to justify
notice by the reviewing court and to convince
the court that of itself the error possessed
8 A-5065-13T1
a clear capacity to bring about an unjust
result."
[State v. Burns, 192 N.J. 312, 341 (2007)
(second alteration in original) (quoting State
v. Jordan, 147 N.J. 409, 422 (1997)).]
In addition, we examine the argument here in light of "the totality
of the entire charge, not in isolation." State v. Chapland, 187
N.J. 275, 289 (2006). "In a case where, as here, the State argues
that the error is harmless because the trial judge correctly
instructed the jury in other components of the charge, '[t]he test
to be applied . . . is whether the charge as a whole is misleading,
or sets forth accurately and fairly the controlling principles of
law.'" State v. McKinney, 223 N.J. 475, 496 (2015) (quoting State
v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997), certif.
denied, 153 N.J. 49 (1998)). "[T]he key to finding harmless error
in such cases is the isolated nature of the transgression and the
fact that a correct definition of the law on the same charge is
found elsewhere in the court's instructions." Ibid. (quoting
Jackmon, supra, 305 N.J. Super. at 299).
While an erroneous jury charge may be a "'poor candidate[]
for rehabilitation' under the plain error theory," Jordan, supra,
147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)),
we nonetheless consider the effect of any error in light "of the
overall strength of the State's case." Chapland, supra, 187 N.J.
9 A-5065-13T1
at 289. In addition, the failure to object signifies that "in the
context of the trial[,] the [alleged] error was actually of no
moment." State v. Ingram, 196 N.J. 23, 42 (2008) (quoting State
v. Nelson, 173 N.J. 417, 471 (2002)).
Here, following the use of force instruction, the trial judge
provided the proper instructions on the elements necessary for a
charge of official misconduct:
In order to be convicted under [N.J.S.A.
2C:30-2(a)], (1) the defendant had to be a
"public servant" at all relevant times, (2)
who committed "an act relating to his office"
which constituted "an unauthorized exercise of
his official functions," knowing that it was
unauthorized or committed in an unauthorized
manner, and (3) his purpose must have been "to
obtain a benefit for himself or another" or
"to injure or deprive another of a benefit."
[State v. Quezada, 402 N.J. Super. 277, 283
(App. Div. 2008); see N.J.S.A. 2C:30-2(a).]
The trial judge also went on to properly provide the elements
necessary for a conviction of aggravated assault. See N.J.S.A.
2C:12-1(b)(1). In giving these instructions, the trial judge
properly emphasized that it was the State's burden to prove each
element of each offense "beyond a reasonable doubt."
In his initial instructions, the trial judge informed the
jury that it must find defendant not guilty if the State failed
to overcome its burden of proof. The jury charge consistently
10 A-5065-13T1
referenced that the burden of proof remained with the State on
each charge, and accurately described the burden to establish each
element of the offenses charged beyond reasonable doubt. Moreover,
the judge was specific in instructing the jury that the offenses
charged were separate and that defendant was entitled to have each
count considered separately.
Accordingly, we are satisfied that there was no error in the
instructions given by the judge and, further, that substantial
evidence supported the jury's verdict. The parties stipulated
that defendant was a corrections officer, and the serious injuries
of the victim were established with the stipulation of her broken
orbital bone. The jury viewed the videotape of the incident
multiple times, and had the ability to weigh the credibility of
the inmate and the defendant, and to assess the testimony of
defendant's fellow corrections officers who observed the incident
firsthand. Officer Allen, for example, testified that cursing at
an officer is considered a minor violation that does not warrant
physical force. Officer Hernandez provided similar testimony.
Both officers also recalled observing defendant striking the
victim in the head repeatedly.
Based upon the forgoing, we find no reversible error in the
trial judge's jury instructions.
11 A-5065-13T1
B. Self-Defense Jury Instruction
Defendant argues, for the first time on appeal, that the
trial judge was required to sua sponte provide the jury with a
self-defense instruction. Defendant contends that the theory of
using force in self-defense was central to his case. Specifically,
defendant argues that there was ample evidence in the record to
support a self-defense instruction, and that providing such an
instruction would have presented a complete defense to both
charges. Such a failure, he argues, constitutes reversible error.
Again, because defendant did not request a self-defense
charge, our review is based upon the plain error standard. State
v. O'Carroll, 385 N.J. Super. 211, 235 (App. Div.), certif. denied,
188 N.J. 489 (2006).
"A trial judge must sua sponte charge self-defense in the
absence of a request . . . 'if there exists evidence in either the
State's or the defendant's case sufficient to provide a rational
basis for its applicability.'" State v. Galicia, 210 N.J. 364,
390 (2012) (quoting O'Carroll, supra, 385 N.J. Super. at 236
(internal quotations omitted)). The required "inquiry is whether
the evidence presented to the trial court clearly indicates a
foundation for the justification of self-defense." Id. at 391.
"[I]f any evidence raising the issue of self-defense is admitted
12 A-5065-13T1
in either the State's or the defendant's case, then the jury must
be instructed that the State is required to prove beyond a
reasonable doubt that the self-defense claim does not accord with
the facts." State v. Burks, 208 N.J. Super. 595, 604 (App. Div.
1986).
Pursuant to statute, "the use of force upon or toward another
person is justifiable when the actor reasonably believes that such
force is immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other person on
the present occasion." N.J.S.A. 2C:3-4(a). However, a person
"who provokes or initiates an assault cannot escape criminal
liability by invoking self-defense as a defense to a prosecution
arising from the injury done to another." State v. Rivers, 252
N.J. Super. 142, 149 (App. Div. 1991). The justification of "self-
defense is . . . unavailable if a lesser degree of force could
have been used to respond to an attack." Galicia, supra, 210 N.J.
at 390.
Here, the testimony at trial, along with the video of the
altercation presented to the jury, supports the conclusion that
defendant was the initial aggressor. Following their exchange of
words, defendant aggressively grabbed the victim from behind,
endeavoring to put her in lockup. The victim then swung her arm
13 A-5065-13T1
in an attempt to free herself, and defendant began repeatedly
striking her in the head with a closed fist. As such, if the jury
determined that defendant was the initial aggressor, no self-
defense charge was necessary. See Rivers, supra, 252 N.J. Super.
at 149. Further, the video shows defendant throwing several
punches to the victim while she was defenseless on the ground.
These facts clearly demonstrate that the level of force used was
excessive, as further corroborated by the testimony of Officer
Allen and Officer Hernandez. Galicia, supra, 210 N.J. at 390.
III.
The issue here is not whether the trial judge precluded
defendant's expert testimony, as defendant argues, but whether the
trial judge properly limited the scope of the proposed expert's
testimony. The trial judge never prohibited the defense from
calling any expert witness, but rather held that neither party
could call an expert witness to testify that the force defendant
actually used was reasonable or unreasonable.
Prior to trial, Judge Ryan, upon motion from the State,
considered whether the defense could call the Director of the
Somerset County Police Academy, Dr. Richard Celeste, as an expert
witness concerning "police practice and procedure." According to
defense counsel, Dr. Celeste would testify that, "under the facts
14 A-5065-13T1
and circumstances, based upon his training and experience and the
experience that [defendant] has received[,] that the actions
undertaken, in his opinion as an expert, are justified under the
facts and circumstances of this particular instance." Following
a hearing, Judge Ryan determined that Dr. Celeste could not testify
to any facts or opinions concerning the instant matter, including,
but not limited to that "defendant acted in conformance with, or
deviated from, the use of force guidelines, rules, regulations,
law, etc." However, Judge Ryan also ordered that, subject to a
N.J.R.E. 104 hearing, Dr. Celeste may be permitted to testify
"concerning the training and education of [defendant]."
Judge Robert Gardner conducted the N.J.R.E. 104 hearing,
wherein he found that Dr. Celeste's proffered testimony was within
the parameters of Judge Ryan's prior order. At trial, the State
again moved to preclude Dr. Celeste from testifying based upon
"issues regarding discovery and also information concerning 104
hearing[.]" Judge Gardner denied the State's request, ruling
consistently with the court's prior determinations. Following
completion of the State's case however, the defense called several
witnesses, but not Dr. Celeste.
A trial court's decision permitting or precluding expert
testimony is entitled to deference on appeal. Townsend v. Pierre,
15 A-5065-13T1
221 N.J. 36, 52 (2015); see also State v. Berry, 140 N.J. 280, 293
(1995) ("[T]he necessity for and admissibility of expert testimony
are matters to be determined within the sound exercise of
discretion by the trial court.").
Expert testimony is admissible where the subject matter at
issue may not be sufficiently familiar to the average juror or
where it would "assist the [jurors] to understand the evidence or
to determine a fact in issue[.]" Berry, supra, 140 N.J. at 289
(quoting N.J.R.E. 702). The requirement that expert testimony
"assist the [jurors]" has been interpreted broadly to encompass
testimony helpful to their understanding of the evidence
presented. Id. at 290-91. The admissibility of expert testimony
does not depend on "'whether the subject matter is common or
uncommon or whether many persons or few have knowledge of the
matter[.]'" Id. at 291 (quoting Rempfer v. Deerfield Packing
Corp., 4 N.J. 135, 141-42 (1950)). Expert opinion testimony is
permissible even where it embraces the ultimate issue to be
determined by the jury, so long as the testimony does not express
an "'opinion of defendant's guilt but simply characterizes
defendant's conduct based on the facts and evidence in light of
[the expert's] specialized knowledge[.]'" State v. Summers, 176
N.J. 306, 314 (2003) (quoting State v. Odom, 116 N.J. 65, 79
16 A-5065-13T1
(1989)); N.J.R.E. 704. The admissibility of such testimony rests
in the sound discretion of the trial court. Summers, supra, 176
N.J. at 312.
Here, the reasonableness of defendant's use of force was the
determinative question for the jury. Thus, the trial judge
properly found that the parties' experts may testify as to the
relevant guidelines regarding the use of force, along with the
educational training that defendant received in that area. In
fact, Raymond Hoffman, an assistant prosecutor and police legal
advisor in Essex County, testified as a fact witness for the State.
He described the training and skills defendant learned as a student
of his at the Essex County Police Academy; however, the trial
court ruled that Hoffman could not testify as an expert witness.
The court explained, consistent with Judge Ryan's ruling, that
Hoffman could not testify as an expert in the State's case-in-
chief, but could possibly do so in rebuttal, depending on whether
the defense puts "a witness on at all," and, if so, what he
testifies to. Therefore, the record is clear that the trial judge
did not "prohibit" defendant from calling its expert witness.
Rather, the parties were instructed that their expert
witnesses could not provide an opinion about whether defendant
acted in conformance with or deviated from those guidelines or
17 A-5065-13T1
training. Such an opinion would go not only to the sole issue in
this case, but also to determining the guilt or innocence of
defendant. Therefore, in agreeing with the trial court's
determination that any expert testimony regarding the
reasonableness of defendant's conduct would usurp the role of the
jury, we find no abuse of discretion. See State v. McLean, 205
N.J. 438, 453 (2011).
IV.
We next consider defendant's argument that the trial court
improperly denied his knowing and voluntary waiver of a jury trial.
Specifically, defendant argues that the trial court failed to
articulate the reasons for his denial pursuant to State v. Dunne,
124 N.J. 303 (1991).
In a letter dated, March 14, 2013, defendant sought to waive
his right to a jury trial pursuant to Rule 1:8-1. He signed the
document indicating that the waiver was made freely, knowingly and
voluntarily. The State objected to defendant's waiver request.
On May 13, 2013, a hearing was held before Judge Ryan on
defendant's motion for a bench trial and defendant's motion
regarding certain expert testimony to be utilized at trial. The
motion judge denied defendant's motion for a bench trial, stating,
18 A-5065-13T1
"I think it [is] something that should be decided by a jury of
your peers, not by a guy in black robes."
"[T]rial by jury is fundamental to the American system of
criminal justice." Dunne, supra, 124 N.J. at 316. And, while the
right to trial by jury may be waived by a defendant, our Supreme
Court has recognized that it remains "'normal and, with occasional
exceptions, the preferable mode of disposing of issues of fact in
criminal cases above the grade of petty offenses.'" Ibid.
(quoting Patton v. United States, 281 U.S. 276, 312, 50 S. Ct.
253, 263, 74 L. Ed. 854, 870 (1930)); see also R. 1:8-1(a).
Accordingly, the Dunne Court determined that in considering
whether to give effect to a defendant's waiver of trial by jury,
a judge should:
(1) determine whether a defendant has
voluntarily, knowingly, and competently
waived the constitutional right to jury trial
with advice of counsel;
(2) determine whether the waiver is tendered
in good faith or as a stratagem to procure an
otherwise impermissible advantage; and
(3) determine, with an accompanying statement
of reasons, whether, considering all relevant
factors, . . . it should grant or deny the
defendant's request in the circumstances of
the case.
[Id. at 317.]
19 A-5065-13T1
The Court described the factors referred to in the third
element in the following way:
Although there is no "judicial calculus that
unerringly resolves each case," State v.
R.G.D., 108 N.J. 1, 12 (1987), the "evidential
axis" that we described in R.G.D. provides a
useful analogy. At one end of the scale,
tilting in favor of jury trial, will be the
gravity of the crime. The higher the degree
of the crime, the greater the weight given to
that factor. Other factors that will tip the
scale will be the position of the State, the
anticipated duration and complexity of the
State's presentation of the evidence, the
amenability of the issues to jury resolution,
the existence of a highly-charged emotional
atmosphere [recognizing this may cut both
ways], the presence of particularly-technical
matters that are interwoven with fact, and the
anticipated need for numerous rulings on the
admissibility or inadmissibility of evidence.
[Ibid.]
Because the accused does not possess a "constitutional right to
waive a jury trial and insist on a bench trial," id. at 316, the
matter rests with the trial judge's sound discretion.
Here, while Judge Ryan did not express in detail the
conclusions underlying the third element of Dunne, the Supreme
Court recognized that this statement of reasons merely provides
"structure to the trial court's discretionary judgment and will
soundly guide appellate review." Id. at 317-18 (citing State v.
Roth, 95 N.J. 334, 363-64 (1984)). Finding ourselves in the same
20 A-5065-13T1
position as the trial court, we evaluate the ruling for abuse of
discretion based upon the evidence contained in the record. Id.
at 312-13.
In considering the gravity of the charged offenses, as well
as the factual nature of this case, which involved a physical
altercation between a male corrections officer and a female inmate,
we agree that a jury was in a better position to evaluate the
merits of this case. Additionally, this case was not one that
involved "particularly technical matters" or the "anticipated need
for numerous rulings on the admissibility or inadmissibility of
evidence." Therefore, we find no reversible error in the trial
court's decision to deny defendant's waiver request.
V.
In defendant's remaining points, he argues, and the State
concedes, that his convictions for official misconduct and assault
should merge and that he is entitled to three additional days of
jail credit. We agree and remand for a correction of the judgment
of conviction.
As for the merging of defendant's two counts, in State v.
Lore, 197 N.J. Super. 277, 283-84 (1984), we concluded that a
defendant's convictions for official misconduct and assault should
merge when "[t]he two offenses occurred at the same time and place
21 A-5065-13T1
[and] [t]he State relied upon the simple assault to establish the
official misconduct in office." Ibid. "Otherwise, defendant will
be punished twice for one offense." Id. at 284.
With respect to defendant's entitlement to three days
additional jail credit, defendant was granted forty-eight days of
credit for time spent in custody prior to sentencing. R. 3:21-8.
However, the judgment of conviction inaccurately states that he
was only in custody from February 14, 2014, to the date of
sentencing, April 3, 2014. Defendant's bail was revoked and he
was taken into custody on February 11, 2014. Therefore, defendant
should have received fifty-one days of jail credit.
As modified, the judgment of conviction is accordingly
affirmed, and we remand the matter to the Law Division to correct
the judgment of conviction.
We do not retain jurisdiction.
22 A-5065-13T1