NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

In these back-to-back appeals consolidated for purposes of this opinion, co-defendants Lemont Love and Randy Williams appeal their convictions, after jury trial, for second-degree robbery, N.J.S.A. 2C:15-1 (count one), second-degree burglary, N.J.S.A. 2C:18-2 (count two), and third-degree aggravated assault, N.J.S.A. 2C:12-1b(7) (count three), arising from the robbery and attack upon the victim Darin Sloat. The court granted the State's motion to sentence defendant Love as a persistent offender on count one, pursuant to N.J.S.A. 2C:44-3a, and imposed a twelve-year custodial term, subject to an 85% period of parole ineligibility under the No Early Release Act (NERA), a concurrent ten-year sentence subject to NERA on count two, and a concurrent five-year sentence with a two-and-one-half-year period of parole ineligibility on count three. For defendant Williams, the court imposed a seven-year period of imprisonment on count one, subject to NERA, a seven-year concurrent custodial sentence on count two, subject to NERA, and a concurrent four-year period of incarceration on count three. Appropriate fees and penalties were also imposed for both defendants. For the following reasons, we affirm both judgments of conviction and the sentences imposed, except that as to defendant Williams, we vacate his sentence in part and remand for correction of the judgment of conviction to reflect merger of the third-degree aggravated assault conviction with the second-degree robbery conviction.

I.

According to the State's proofs, Sloat owed Love a significant amount of money. On the evening of February 16, 2010, Sloat was staying at a motel in East Brunswick with his girlfriend and her ten-month-old son. Visiting with Sloat's girlfriend was Love's girlfriend. Love's girlfriend called Love from the motel, and Sloat could hear Love screaming at her. She eventually left the motel. The next morning, Love, Williams and Charles Opher, the third defendant who pled guilty to third-degree attempted theft and testified against Love and Williams, went to the motel, where all three men attacked Sloat. Love stomped and kicked Sloat, Williams punched Sloat in the head and neck areas, and Opher punched Sloat in the lower back. The assault lasted approximately one minute, after which the three men ran out the door, taking Sloat's cell phone with them and fleeing in a silver Pontiac. An alert went out for the vehicle and a short time later, the three men were apprehended. Sloat's cell phone was recovered from the vehicle, and testing confirmed the presence of blood on the sneakers Love was wearing.

A Middlesex County grand jury indicted Love, Williams, and Opher on charges of robbery, burglary, and aggravated assault. As noted, Opher's charges were resolved through a plea agreement, which called for him to testify against Love and Williams. Love and Williams pled not guilty and proceeded to trial on the charges.

During deliberations, the jury took a recess and as they were about to exit an elevator to return to the courtroom, they saw defendants in handcuffs returning to the courtroom. The court was informed of the incident and questioned each juror individually to determine what, if anything, they saw.

Some jurors reported that after the doors opened, the elevator doors closed and they went down a second time. There was talk that the doors closed and they went down in the elevator again because defendants were walking in the hallway. Juror eleven stated that she saw defendants handcuffed, but that she could still perform her duties impartially. The jury then reassembled in the courtroom and each juror individually responded that he or she could continue to be fair and impartial in the deliberations.

Following the voir dire, the jury continued its deliberations until mid-day when the court received a question from the jury asking, "[i]s the charge of theft for theft of the phone or the money Love felt he was owed?" The court initially answered that the theft was related to the phone. However, after additional arguments, the judge reinstructed the jury that the theft from the person related to the phone but the theft component of the robbery related to theft of the money owed. After continued deliberations, the jury returned verdicts of guilty for robbery in the second degree, burglary in the second degree, and third-degree aggravated assault.

On appeal, Love raises the following points for our consideration:

In his pro se brief, Love raises the following additional points:

Williams presents the following points for our consideration:

II.

For different reasons, both defendants contend the trial judge erred when he denied their motions for a mistrial. Love urges that once the jury learned he was in custody, such knowledge influenced their deliberations and verdict. Williams contends his defense, which included a strategy to distance himself from Love, was destroyed once the jurors saw him with Love. More specifically, he maintains his presumption of innocence was destroyed when jurors saw him in handcuffs and the prejudice resulting from that observation could not have been cured, even with a curative instruction, which was not given.

The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right to trial by an impartial jury. State v. R.D., 169 N.J. 551, 557 (2001). Thus, a criminal defendant "is entitled to a jury that is free of outside influences and [who] will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60 (1983). "[I]f during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." R.D., supra, 169 N.J. at 557-58. When a juror may have been exposed to an outside influence,

As part of the inquiry, the trial "court is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby." R.D., supra, 169 N.J. at 558. Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on Rule 1:16-1 (2013) states:

Such improper influence may include, as here, instances where jurors view a defendant dressed in restraints. Estelle v. Williams, 425 U.S. 501, 512-13, 96 S.Ct. 1691, 1697, 48 L. Ed. 2d 126, 135 (1976); State v. Kuchera, 198 N.J. 482, 496-97 (2009); State v. Damon, 286 N.J.Super. 492, 497-98 (App. Div. 1996). "`Not only is it possible that the sight of [handcuffs] might have a significant effect on the jury's feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.'" Damon, supra, 286 N.J. Super. at 498 (quoting Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L. Ed. 2d 353, 359 (1970)).

In the circumstances presented here, the judge acted appropriately. After learning the jurors may have seen defendants in custody, he questioned each juror individually. Through this process, he learned that only one juror saw defendant in handcuffs, some jurors saw the head of the defendant, and some jurors saw nothing. Following this individual and particularized questioning of each juror, the judge brought all of the jurors back together and asked each juror individually whether he or she could continue to be a fair and impartial juror. Each responded affirmatively. The judge thus evaluated the potential prejudice objectively, through his opportunity to observe the jurors' responses and by subjective evaluation of their own impartiality. Scherzer, supra, 301 N.J. Super. at 487-88.

"A mistrial is an extraordinary remedy[]" that should be employed "[o]nly when there has been an obvious failure of justice[.]" State v. Mance, 300 N.J.Super. 37, 57 (App. Div. 1997). When "the court has an appropriate alternative course of action[,]" it should deny a request for a mistrial. State v. Allah, 170 N.J. 269, 281 (2002). This determination is highly fact sensitive. Id. at 280.

In our review of the grant or denial of a mistrial motion, we "should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence." State v. Harvey, 151 N.J. 117, 205 (1997). Thus, we will not disturb a trial court's ruling on the motion unless we conclude the judge's ruling represents an abuse of discretion resulting in a "manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969); see also Allah, supra, 170 N.J. at 269.

Here, the trial judge's credibility determinations following his voir dire of each juror should be accorded substantial deference. He acted well within his discretion in determining the jury was not tainted and in denying the motions for mistrial. R.D., supra, 169 N.J. at 559. We find no manifest injustice in this ruling or in the failure to provide any further curative instructions following the voir dire, individually of each jury, to warrant our interference.

III.

Defendants next contend their convictions must be reversed because they were convicted of a criminal offense for which they were not indicted. Specifically, they point to the grand jury proceeding where the State presented its theory of robbery to the jury based upon defendants' purported theft of Sloat's cell phone. They note a grand juror initially inquired of the prosecutor whether the robbery charge presented pertained to the stolen phone, to which the assistant prosecutor responded affirmatively.

"No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury. . . ." N.J. Const. Art. I, ¶ 8. It is fundamental that an indictment charging a defendant with the commission of a crime must identify and explain the criminal offense so that the accused may prepare an adequate defense. State v. LeFurge, 101 N.J. 404, 415 (1986). If the criminal transaction for which a defendant is convicted differs from what was charged by the State in the indictment, the defendant may not be convicted thereon. State v. Wolden, 153 N.J.Super. 57, 60 (1970). Nonetheless, "[a]n indictment is merely a pleading device and never an end in itself." State v. Lopez, 276 N.J.Super. 296, 303 (App. Div.) (quoting LeFurge, supra, 101 N.J. at 419, certif. denied, 139 N.J. 289 (1994). While an indictment must be specific enough to notify the jury and the trial court of the charge before it, the interpretation of the charge "cannot be permitted to deteriorate into a mere game. . . on the basis of some arcane notion of pleading." Ibid. (alteration in original) (citations and internal quotation marks omitted).

Thus, "courts have refused to construe the language of an indictment rigidly in the absence of any indication that a case was presented to a trial jury on a different basis than to the grand jury or a showing of other prejudice to the defendant." Ibid.

In State v. Talley, 94 N.J. 385, 394 (1983), the indictment accused defendant of robbery.

Similarly, in State v. Dixon, 125 N.J. 223, 257-58 (1991), the Court concluded that the trial court did not commit reversible error in submitting a charge of aggravated criminal sexual contact based on the presence of a deadly weapon even though the indictment charged only the commission of aggravated criminal sexual contact based on the commission of a robbery.

Defendants were indicted for first-degree robbery as follows:

Thus, defendants were not charged with any crime for which they were not indicted. Moreover, during the grand jury proceedings, the assistant prosecutor presented the factual theory upon which the State expected to proceed, namely that defendants went to the motel looking for Sloat, who owed Love a substantial amount of money. In the State's opening statement at trial, the assistant prosecutor, without objection, reiterated that defendants' motive for going to the motel was to assault and collect money allegedly owed to Love. In addition, during the trial, the State introduced testimony regarding Sloat's indebtedness to Love without objection. Finally, this theory underlying the commission of the crimes was argued by the State in its closing argument without objection.

IV.

Next, during deliberations, the jury sent a question to the court: "Is the charge of theft for theft of the phone or the money Love felt he was owed?" The court responded that the robbery charge related to the cell phone. The assistant prosecutor sought clarification from the court because she had not read the note prior to the court responding to the jury's question. She expressed that the court's response essentially limited the jury's consideration to theft of the cell phone, which was Question 1C on the verdict sheet. She pointed out that Questions 1A and 1B related to the robbery and the particular language, "in the course of committing a theft for the robbery[,] [on the verdict sheet] had to do with the money." In response to the assistant prosecutor's inquiry, defense counsel objected to any further clarification, urging that the grand jury transcript "refers to the cell phone." The assistant prosecutor objected to that characterization of the grand jury proceedings and read a portion of the transcript related to a statement given to police by Opher during which he stated that Sloat owed Love money and was looking for Sloat to get his money.

The court determined that clarification was needed and instructed the jury as follows:

On review, our task is to "determine whether the trial court erred in its response and, if so, whether that `error undermines our confidence that the deliberative process produced a just result and the conviction must be reversed.'" State v. Lykes, 192 N.J. 519, 537 (2007) (quoting State v. Parsons, 270 N.J.Super. 213, 224-25 (App. Div. 1994)). Any supplemental instruction must be viewed in light of the main charge. See State v. Ramseur, 106 N.J. 126, 305 (1987)(stating that a trial court should relate the supplemental instruction back to the main jury charge being supplemented). Based upon our review of the trial judge's instruction to the jury on this issue, in its entirety, we conclude there was no error in the judge's response.

After the judge realized his initial instruction may have been confusing to the jury, the judge appropriately brought them back in to more fully explain the answer to his question. The robbery charge was appropriate only for the attempted theft of the money based on the intent in the statute, as there is no evidence to show that defendants went there with the intention to steal the cell phone. Rather, the phone was taken in the heat of the moment and attack. The judge properly instructed the jury that they were not to deliberate on robbery based on theft of the phone, but only if they believed defendants went to the motel with the purpose and intent to collect the debt from Sloat. "[B]ecause the trial court instructed the jury in accordance with relevant legal principles, under ordinary circumstances, we would presume that the jury understood and followed those instructions." Savage, supra, 172 N.J. at 394 (citing State v. Burris, 145 N.J. 509 (1996); see also State v. Manley, 54 N.J. 259, 270 (1969) (stating that, with regard to proper use of evidence, "the Court presumes that juries will understand and abide by the court's instruction"). Thus, it must be presumed that the jury followed the instructions and did not consider the theft of the cell phone for the charge of robbery.

Both Love and Williams contend the trial court denied their motions for acquittal based upon their claim the verdict was against the weight of the evidence. We conclude these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

V.

Love separately argues as reversible error the trial court's failure to give an appropriate limiting instruction concerning the jury's consideration of Opher's guilty plea. Love contends the court's failure to do so deprived him of the right to due process and a fair trial. Love urges, the trial court should have instructed the jury that Opher's guilty plea could not be treated as substantive evidence of Love's guilt.

Because Love never sought a limiting instruction nor objected to the court's jury charge related to judging the credibility of witnesses, we consider this challenge under the plain error standard. R. 2:10-2. "Generally, a defendant waives the right to contest an instruction on appeal if he does not object to the instructions as required by Rule 1:7-2. Nevertheless, [we] may reverse on the basis of unchallenged error if [we] find that the error was `clearly capable of producing an unjust result.'" State v. Adams, 194 N.J. 186, 206-07 (2008) (quoting R. 2:10-2).

Not any possibility of an unjust result will suffice. Stated in terms of its effect in a jury trial, the possibility must be "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). In other words, to be considered on appeal, there must be "`legal 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 a clear capacity to bring about an unjust result.'" State v. Nero, 195 N.J. 397, 406 (2008) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L. Ed. 2d 797 (1970)). In determining whether there has been error, the charge must be read as a whole "`in light of the totality of the circumstances—including all the instructions to the jury, [and] the arguments of counsel.'" Adams, supra, 194 N.J. at 207 (alteration in original) (quoting State v. Marshall, 123 N.J. 1, 145 (1997)).

Although a defendant may be convicted exclusively on the uncorroborated testimony of an accomplice, "because of the inherent conflict in such testimony, `a defendant has a right, upon request, to a specific jury instruction that the evidence of an accomplice is to be carefully scrutinized and assessed in the context of his specific interest in the proceeding.'" Ibid. (quoting State v. Begyn, 34 N.J. 35, 54 (1961)(internal quotation marks omitted)). A co-defendant witness creates special issues of witness credibility. Ibid. Thus,

Pleas raise even more unique issues and should be used to consider credibility, not substantive evidence of guilt. Ibid. As such, "the trial court should instruct the jury that it must carefully scrutinize the testimony of a co-defendant in light of the witness's special interest and inform the jury that a co-defendant's guilty plea may be used only to assess credibility and may not be used as substantive evidence of a defendant's guilt." Ibid.

In Adams, the defendant failed to object to the jury instructions or request a limiting instruction. Id. at 206. The Court found the trial court erred when it failed to instruct the jury to scrutinize the testimony of the co-defendant, but there was no plain error present from its failure to do so because

In the present matter, defense counsel likewise thoroughly cross-examined Opher regarding his guilty plea, and the defense highlighted the fact of the plea agreement Opher reached with the State and the impact of that plea agreement on his exposure to incarceration. On behalf of Williams, his trial attorney argued:

On behalf of Love, defense counsel argued:

In addition, the trial court gave the standard charge on credibility. Therefore, we cannot conclude the trial court's failure to charge the jury to particularly scrutinize Opher's bias, as evidenced by the deal he reached with the State, had minimal impact upon the outcome of the trial and did not have the clear capacity to cause an unjust result.

Love next complains his trial counsel provided ineffective assistance because police seized the cell phone illegally and trial counsel failed to make the appropriate suppression motion concerning this evidence. Why trial counsel failed to make such a motion is not readily discernible from the record. Consequently, whether counsel was ineffective is a matter requiring consideration of evidence and testimony outside the record and is therefore an issue more appropriate for disposition through post-conviction relief proceedings. State v. Preciose, 129 N.J. 451, 460 (1992).

Finally, defendants' contend the trial court erred at sentencing when it failed to merge their third-degree robbery convictions into the second-degree robbery conviction. The State concedes the aggravated assault convictions for both defendants should have merged into their second-degree robbery convictions; therefore, defendants' judgments of conviction must be amended accordingly.

The remaining arguments advanced by both defendants and those advanced by Love in his supplemental brief, which have not been specifically addressed in this opinion, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendants may not have received a perfect trial, but we are convinced by the proofs presented in this case that defendants received a fair trial. State v. Cook, 330 N.J.Super. 395, 420 (App. Div. 2000)(citation omitted)(holding "a defendant is entitled to a fair trial, not a perfect one").

We remand for the entry of an amended judgment of conviction merging the aggravated assault convictions for both defendants into their robbery convictions. We otherwise affirm the judgments of conviction and the sentences imposed. We do not retain jurisdiction.