NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

In a six-count indictment, defendant Quandrel Ivey and co-defendants Douglas Proveaux, Rameek Candelario, and Geovanni Walker were jointly charged with second-degree robbery, N.J.S.A. 2C:15-la(1), involving victim Richard Derer (count one); second-degree robbery involving victim Keith Wagner (count two); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1a(1) (count three). Defendant and Walker were also jointly charged with second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count six). Count four charged Proveaux and Candelario with second-degree aggravated assault upon Derer, contrary to N.J.S.A. 2C:12-1b(1).

Walker and Proveaux pled guilty prior to trial. Both agreed to testify truthfully at defendant's trial as part of their plea agreements. Tried separately, a jury convicted defendant of robbery and conspiracy to rob Derer, and unlawful possession of a weapon. Defendant was acquitted of robbing Wagner and possessing a handgun for an unlawful purpose.

On June 13, 2012, the court sentenced defendant to concurrent five-year prison terms with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, on the robbery and conspiracy charges. The court imposed a concurrent five-year sentence with a three-year parole ineligibility period on the gun charge.

On appeal, defendant raises the following arguments:

Having considered these arguments in light of the record and applicable standards, we affirm the conviction. However, with respect to Point II, the State concedes that the trial court should have merged the robbery and conspiracy convictions. Accordingly, we remand for the limited purpose of amending the judgment of conviction to correct that error.

I.

The witnesses generally agreed that all four defendants traveled together from Walker's home to the home of Derer's girlfriend for the purpose of purchasing marijuana from Wagner, using Derer as the middleman. The various accounts differed, however, with respect to whether defendants agreed in advance to rob Derer and Wagner. The testimony also varied as to whether Proveaux possessed a gun, allegedly obtained from either defendant or Walker, during the course of the robbery.

Walker testified that defendant was involved in planning the robbery. He explained that:

Walker provided additional details of the plot on cross-examination. He stated that he was inside his house with defendant while exchanging text messages with Derer about the drug transaction. Proveaux and Candelario were drinking beer in his backyard. While inside, Walker and defendant did not discuss the robbery. At some point, he and defendant went outside, where the four of them decided to "get a gun" and go rip Derer and Wagner off. Specifically, Walker explained:

A. Yes.

Walker acknowledged that he knew a robbery was going to occur. However, he also specifically testified that the use or threatened use of his air soft gun was not a part of the plan, which was solely to rob Derer and Wagner.

According to Walker, he owned an air soft gun that he had previously agreed to sell to Proveaux, and he gave it to Proveaux the day of the robbery. He described an air soft gun as one that "shoots plastic pellets," which is "[n]ot a BB gun." Walker described his sale of the gun to Proveaux as an unrelated transaction that had nothing to do with the robbery. Walker was unsure whether Proveaux brought the gun with him to Derer's girlfriend's apartment complex, and testified he never saw the gun used during the robbery.

Walker claimed he had already left the vicinity when Proveaux and Candelario first approached Derer and Wagner. Proveaux and Candelario then chased Derer into the apartment complex, while Walker and defendant went to a neighboring building where they eventually met up with Proveaux and Candelario following the robbery. Proveaux and Candelario thereafter dropped defendant and Walker back off at Walker's house.

Proveaux offered a somewhat different version of events. He admitted that his recollection of the incident was limited because he was intoxicated and under "[a] lot of stress" in his life at the time. Walker complained that Derer owed him money, which caused Proveaux and the others to want to "get" Derer. According to Proveaux, defendant was part of their plan, which was to have defendant and Walker serve as decoys during the drug transaction "while me and [Candelario] snuck up and me being the one with the gun telling [Derer] to run his pockets." The plan was just to scare Derer, and the beating Proveaux gave him "just happened" after Derer decided to run.

Contrary to Walker, Proveaux testified that he had a BB gun with him during the robbery. He stated that defendant provided him with the gun while they were still at Walker's house. He denied that Walker gave him the gun, or that he had any prior arrangement to purchase it from Walker.

Proveaux testified that the first thing he did upon approaching Derer and Wagner was to pull his gun out on Derer and tell him to run his pockets. The gun "was [] right in front of [Derer]" and "[h]e should have seen it." Additionally, Walker and defendant would have had to have seen it also. Derer responded by saying he only had ten dollars and his phone and then took off into the building. Proveaux and Candelario followed, at which time Proveaux tucked the gun into his pants. After severely beating Derer up, he and Candelario fled the scene, met back up with defendant and Walker, and drove off in their van. Proveaux stated he later disposed of the gun in a Camden trash can.

For his part, Derer testified to the following sequence of events: (1) defendant and Walker approached him and Wagner; (2) Wagner handed the "weed" to defendant, who looked at it awkwardly without saying anything; (3) Proveaux and Candelario approached and stood next to defendant and Walker, and then directed Derer and Wagner to run their pockets because they were going to rob them; (4) Derer asked "what"; and (5) Candelario punched Derer in the face, knocking him into the apartment lobby where the remainder of the assault by Proveaux and Candelario took place. Derer testified at that point Proveaux threatened him by saying "[i]f you get up I'm going to pop off," while grabbing his hip. However, Derer did not actually believe Proveaux had a gun, nor did he ever see a gun during the robbery.

Defendant testified that there was never any discussion or agreement about robbing anyone or carrying a firearm. Rather, "[t]he only thing that we had set up was to meet up to buy the marijuana." He denied providing anyone with a gun, and stated he "didn't see any weapons at all that night."

According to defendant, he and Walker met Derer and Wagner behind the apartment complex where Derer's girlfriend lived. Walker gave Wagner $20, and in return Wagner handed defendant a sandwich bag of marijuana. After defendant complained that he only received about half the marijuana that Walker paid for, he saw Proveaux and Candelario approach in an intoxicated and obnoxious manner. The two men then started to assault Derer "because I guess they didn't like his tone of voice. . . ." Derer then ran into the building, and defendant did not observe what happened inside. Defendant described it as "just a coinciden[ce], just a freak incident" that Proveaux and Candelario happened to arrive and threaten Derer and Wagner as they were conducting the marijuana deal.

During deliberations, the jury sent out a note that said "transcripts" on the top. The note read: "Ivey is saying there is no gun, Walker is saying he sold the gun, Proveaux is saying he was given the gun." Because no transcripts existed, the trial judge and counsel engaged in a discussion as to how to address the jury's question. Ultimately, the trial court advised the jury:

The entirety of Proveaux's trial testimony was then replayed for the jury. When trial resumed the next day, the judge welcomed back the jurors and stated: "The jury yesterday requested two playbacks. We had one yesterday. We will now do the playback of Mr. Walker." Walker's testimony was then played back in its entirety. After further deliberations, the jury convicted defendant of robbing and conspiring to rob Derer, and unlawfully possessing a weapon. As noted, defendant was acquitted of robbing Wagner and possessing a weapon for an unlawful purpose. This appeal followed.

II.

Defendant's sole basis for challenging his conviction rests on his contention that the trial court erred in its response to the jury's question. Defendant argues that "[t]his resulted in a playback of testimony that was at once too narrow and too broad." Defendant submits that the playback was too narrow because it failed to include his testimony. On the other hand, it was "too broad because it was not limited to testimony about the gun but instead contained the entirety of the State's key witnesses' testimony, [thereby] exposing the jury for a second time to the full extent of the State's case against [defendant]." Consequently, defendant argues that he was prejudiced and his federal and state constitutional rights to due process and a fair trial were violated.

The State answers that the trial court's response to the jury's initial request for "transcripts" was an appropriate exercise of discretion. The jury was properly informed that written transcripts were not available, but it could review playbacks of the video-recorded testimony. The jury then requested playbacks of the testimony of Walker and Proveaux, and the trial court properly complied with that request.

We apply the plain error standard here because defendant did not object at trial to the judge's response to the jury question. R. 2:10-2. Nor did defendant object when the entire testimony of the two witnesses was replayed, or ask to have his own testimony similarly replayed. Under the plain error standard, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result. . . ." R. 2:10-2; see State v. Galicia, 210 N.J. 364, 386 (2012).

"Courts have broad discretion as to whether and how to conduct read-backs and playbacks." State v. Miller, 205 N.J. 109, 122 (2011). In Miller, the jury asked for a playback of one victim's testimony. Id. at 116. Because no court reporter was present, the court, over defendant's objection, opted to replay the victim's videotaped testimony in full, in open court, with all parties present. Id. at 116-17. The Court found no abuse of discretion, and in the process "offer[ed] certain guidelines for the playback of video testimony" in future cases. Id. at 122.

The Court noted that "judges should ordinarily grant a jury's request to play back testimony," and "should not decline a request simply because it `would take time'." Ibid. (quoting State v. Wolf, 44 N.J. 176, 186 (1965)). "As a general rule. . . the entire testimony requested should be played back-including direct and cross examination- so that evidence may be considered in its proper context." Ibid. "Trial courts nonetheless retain discretionary authority to try to narrow a jury's request if it calls for the playback of extensive testimony." Id. at 122-23. Additionally, "[p]laybacks . . . should take place in open court with all parties present." Id. at 123.

In the present case, the trial court was unable to comply with the jury's request for transcripts. The court expressed obvious concern over the length of time it would take to replay extensive testimony, and the difficulty in attempting to parse out any particular references to the gun testimony. Notwithstanding, the judge informed the jury that it had the right to either "listen to the entire testimony of a witness" or "[i]f there's a specific question we'll look for it." The judge then sent the jury back to consider this instruction "and let me know what your decision is, I will accommodate you."

While far from a model of clarity, a fair reading of the record is that the jury requested playbacks of the complete testimony of Walker and Proveaux, and not of defendant. The playbacks took place in open court with all parties present. We discern no plain error in the judge's response to the jury's ambiguous note, which was framed more in the form of an observation rather than a question. Nor do we discern any plain error in the judge's decision to replay only the co-defendants' testimony, as requested by the jury, or the decision to play back their entire testimony. Because defendant maintained he never saw or even discussed a gun, the jury may have simply determined it did not need his testimony repeated. In any event, defendant did not object, which may well have been a strategic decision designed to highlight the discrepancies in the co-defendants' varying accounts of the events.

We agree with defendant that the trial court did not give a limiting instruction advising the "jurors to consider all of the evidence presented and not give undue weight to the testimony played back." Miller, supra, 205 N.J. at 123. Certainly the court's failure to do so was error. Nonetheless, again defendant did not request such a limiting instruction or object to its absence. Moreover, in its general instructions, given the same day as the jury's question, the court repeatedly admonished the jury to consider "all of the evidence" presented during the trial. Accordingly, we conclude that this error, standing alone, is not of such magnitude "as to have been clearly capable of producing an unjust result." R. 2:10-2. Defendant's convictions are therefore affirmed.

III.

N.J.S.A. 2C:1-8a(2) requires that a conviction for conspiracy merge with a conviction for the completed substantive offense. See also State v. Hardison, 99 N.J. 379, 386 (1985); State v. Allison, 208 N.J.Super. 9, 19-20 (App. Div.), certif. denied, 102 N.J. 370 (1985). Consequently, at sentencing, the trial court erred in failing to merge defendant's conspiracy conviction with his robbery conviction, as the State readily concedes. We therefore remand for the limited purpose of amending the judgment of conviction to reflect the merger of these two convictions, which does not affect the aggregate term of defendant's sentence. See State v. Soto, 340 N.J.Super. 47, 69 (App. Div.), certif. denied, 170 N.J. 209 (2001).

Affirmed in part, remanded in part.