NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

In these separate appeals, calendared back-to-back and addressed in a single opinion, Naji S. Muhammad and Hamza Abdul-Matin were charged as co-defendants with: two counts of first-degree carjacking, N.J.S.A. 2C:15-2; two counts of first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a handgun, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. Defendant Muhammad was charged individually with third-degree resisting arrest, N.J.S.A. 2C:29-2a(3), and second-degree eluding, N.J.S.A. 2C:29-2b. Defendant Abdul-Matin was charged individually with fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2), and third-degree aggravated assault, N.J.S.A. 2C:12-1b(9).

Following a jury trial, both defendants were found guilty as charged with the exception that Abdul-Matin was found guilty of lesser-included second-degree robbery rather than first-degree robbery. Additionally, both defendants pled guilty to second-degree "certain persons" weapons charges in exchange for a concurrent sentence. N.J.S.A. 2C:39-7(b)(1).

The trial court sentenced Muhammad to twenty years of imprisonment for carjacking, subject to the eighty-five percent No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, parole bar and imposed concurrent terms for the underlying weapons charges and the resisting arrest charge. In addition, the court imposed a consecutive ten-year sentence subject to NERA for eluding, for an aggregate sentence of thirty years, and Muhammad was sentenced to ten years imprison on the "certain persons" offense, to be served concurrently.

The trial court sentenced Abdul-Matin to twenty years of imprisonment for carjacking, subject to the eighty-five percent NERA parole bar, and imposed maximum concurrent terms for the underlying robbery and weapons charges. In addition, the court imposed consecutive five-year and eighteen-month sentences for aggravated assault and resisting arrest, and Abdul-Matin was sentenced to ten years imprisonment on the "certain persons" offense, to be served concurrently.

On appeal, defendant Muhammad raises the following issues for our consideration:

On appeal, defendant Abdul-Matin raises the following issues for our consideration:

We have considered these arguments in light of the record and applicable law, and we affirm Muhammad's and Abdul-Matin's convictions, but remand both cases to the trial court for resentencing.

I.

On January 5, 2010, Gary Tenis and Sonny Mitchell stopped at a Shell gas station for gas and cigarettes. Tenis exited their black Chevy Silverado pickup truck and entered the convenient store, while Mitchell remained in the vehicle, speaking on his cell phone. When Tenis returned, he was confronted by a man dressed in all black and wearing a ski mask, later identified as defendant, Muhammad.

Muhammad gained entry to the vehicle through the driver's side door, pointed a gun at Mitchell, and ordered him to exit. Heeding Muhammad's command, Mitchell began to open the passenger door, where a second masked man, later identified as defendant,

Abdul-Matin, forcefully removed him from the passenger's seat. Defendants drove out of the station and Mitchell called the police.

Shortly thereafter, officers located the pickup truck at a traffic light and activated their overhead lights and sirens. Defendants proceeded to speed through the light and the officers gave chase. A second police vehicle, driven by Officer Helder Deabreu, was dispatched to block the pickup truck as it sped down Anna Street. The chase concluded when the pickup truck collided with Deabreu's cruiser. Ultimately, Muhammad and Abdul-Matin were removed from the vehicle and placed under arrest. Muhammad's handgun was discovered to have been fake.

II.

We turn first to the argument made in kind by each defendant that the imposition of consecutive sentences violated State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed. 2d 308 (1986). Because we find that remand is appropriate on this point, we only briefly address the remaining alleged errors cited by each defendant, including: whether the court failed to properly instruct the jury; whether Abdul-Matin's convictions for second-degree robbery and possession of a weapon for an unlawful purpose should merge with carjacking; whether Muhammad was properly sentenced as a persistent offender; whether the trial court double-counted aggravating factor thirteen; whether the trial court incorrectly applied NERA; and errors in the judgment of conviction. We find appellants' remaining arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Given the number of errors in each defendant's sentence, we vacate each sentence and remand for resentencing.

A.

We apply a deferential standard of review to a trial court's sentence and do not "substitute [our] judgment" for that of the judge. State v. Case, 220 N.J. 49, 65 (2014). The sentencing court "must `state reasons for imposing such sentence including ... the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence.'" State v. Fuentes, 217 N.J. 57, 73 (2014) (omission in original) (quoting R. 3:21-4(g)). "When the aggravating and mitigating factors are identified, supported by competent, credible evidence in the record, and properly balanced, [the Court] must affirm the sentence and not second-guess the sentencing court." Case, supra, 220 N.J. at 65. But, "if the trial court fails to identify relevant aggravating and mitigating factors, or merely enumerates them, or forgoes a qualitative analysis, or provides little `insight into the sentencing decision,' then the deferential standard will not apply." Ibid. (quoting State v. Kruse, 105 N.J. 354, 363 (1987)).

Under the Code of Criminal Justice, trial judges have discretion to decide whether sentences should run concurrently or consecutively. N.J.S.A. 2C:44-5(a). In Yarbough, supra, 100 N.J. at 630, the Supreme Court outlined criteria to channel that discretion and promote consistency in sentencing. State v. Miller, 205 N.J. 109 (2011). Furthermore, "the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision." Yarbough, supra, 100 N.J. at 643. If the trial court does not explain why consecutive sentences are warranted, a remand is ordinarily needed for the judge to place reasons on the record. Miller, supra, 205 N.J. at 129 (citing State v. Abdullah, 184 N.J. 497, 514-15 (2005). Sentences can be upheld where the sentencing transcript makes it possible to "readily deduce" the judge's reasoning. State v. Bieniek, 200 N.J. 601, 609 (2010). But those cases are the exception, not the rule.

Here, the trial court sentenced defendant Muhammad to ten years on the eluding charge to run consecutively to the carjacking charge and stated the following reasons:

The trial court sentenced defendant Abdul-Matin to eighteen months on fourth-degree resisting arrest and five years on aggravated assault to run consecutive to carjacking, and stated the following reasons:

We find that in both of the above instances, the trial court's Yarbough analysis is sparse to the extent that we cannot readily discern the judge's rationale for imposing consecutive sentences. C.f. Bieniek, supra, 200 N.J. at 609. Accordingly, remand is appropriate. Miller, supra, 205 N.J. at 129.

B.

The following errors, compounded by the trial court's failure to conduct a proper Yarbough analysis, require a resentencing for each defendant.

First, defendants correctly argue, and the State agrees, that the trial court incorrectly mandated eighty-five percent parole disqualifiers on both defendants pursuant to NERA.

However, eluding is not an enumerated offense under NERA. N.J.S.A. 2C:43-7.2. Additionally, the State concedes that the trial court abused its discretion by relying on aggravating factor thirteen, N.J.S.A. 2C:44-1(a)-13 (fleeing in a stolen vehicle), because it improperly double-counted the fact that the same stolen truck used during defendant's attempt to flee police was the one taken in the carjacking. State v. Kromphold, 162 N.J. 345, 353-56 (2000) (the trial court cannot rely on an element of the offense as either an aggravating or mitigating factor in order to justify the sentence imposed). We agree and find remand appropriate on this issue.

Next, with respect to defendant Muhammad, we agree that the trial court improperly imposed an extended term sentence as a persistent offender. In imposing an extended term for a persistent offender, a court must engage in a "multi-step process." State v. Dunbar, 108 N.J. 80, 88-89 (1987), overruled in part, State v. Pierce, 188 N.J. 155 (2006).

The sentencing court must determine whether the minimum statutory predicates for subjecting the defendant to an extended term have been met. The court must then determine whether to impose an extended sentence. Next, it must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence. Finally, it must determine whether to impose a period of parole ineligibility. Id. at 89. Accord State v. Cook, 330 N.J.Super. 395, 420-21 (App. Div.), certif. denied, 165 N.J. 486 (2000). Here, the trial court found:

As with the sentencing court's shortcomings with respect to its analysis under Yarbough, the above assessment is exceedingly thin in light of standards established under Dunbar. However, we add that should the sentencing court, after proper consideration, find that defendant is to be subjected to an extended term as a persistent offender, and that, thereby, a period of parole ineligibility is warranted, the court must be sure to set that term of ineligibility within the parameters prescribed by N.J.S.A. 2C:43-7(b). Additionally, Muhammad's judgment of conviction should be corrected to state that defendant is to serve count nine consecutively to the term on count one, and count seven is to be concurrent.

We briefly turn to defendants' argument that the court erred by failing to instruct the jury on a lesser-included offense. Defendants argue receiving stolen property, N.J.S.A. 2C:20-7(a), constitutes a lesser-included offense to carjacking and robbery. This argument lacks merit as receiving stolen property requires an independent factual predicate. It may be appropriate for defendants to argue that the jury should have been instructed on the related charge, but not the lesser-included charge, of receiving stolen property by presenting evidence that during the mere minutes between the carjacking and police apprehension, the "carjackers" exited the vehicle and defendants took control of the vehicle. However, we need not address the merits of this argument because defendants' failed to request the related charge at trial. See State v. Thomas, 187 N.J. 119, 134-36, n.3, n.4 (2006) (holding that a related-offense may be chargeable upon a defendant's request if, for example, a defendant aided the flight of the principal but lacked the specific intent to commit robbery).

Defendants also allege the court erred by failing to provide jury instructions on out-of-court identifications, despite defendants failing to request the instruction. See State v. Henderson, 208 N.J. 208, 304 (2011). This argument lacks merit. No such out-of-court identification was made here. Instead, witnesses only provided a description of the perpetrators, but never provided an out-of-court identification.

Finally, we reach defendant Abdul-Matin's contention that his convictions for robbery and possession of a weapon for an unlawful purpose should have merged with his conviction for carjacking. The State concedes that robbery should merge, but argues that the possession of a weapon for an unlawful purpose charge should remain separate. We agree.

Generally, the charge for possession for an unlawful purpose will merge into a substantive offense; however, if the jury finds a broader purpose for the unlawful purpose than the substantive offense, merger is not appropriate. State v. Davis, 144 N.J. 628 (1996). For example, using a gun to commit a substantive offense, like robbery, and also using the gun "to frighten and prevent eyewitnesses from informing the police," does not require merger. Id. at 636-37.

Here, the jury was instructed that the unlawful purpose in possession of the firearm could be based upon the carjacking and robbery, and/or the "assault on [t]he police officer" that occurred after the truck crashed and defendant was ordered to show his hands. Significantly, the jury did not find that defendant was guilty of using a deadly weapon or threatening use of a deadly weapon during the course of the carjacking and robbery; however, they did find defendant guilty of possession of a weapon for an unlawful purpose. This indicates that the jury accepted the alternative grounds for the charge, "assault on [a] police officer." Accordingly, merger of this charge with the carjacking is not appropriate.

For the above reasons, we affirm Muhammad's and Abdul-Matin's convictions but vacate each sentence and remand for resentencing consistent with this opinion, as well as for the necessary corrections to the judgments of conviction. We do not retain jurisdiction.