STATE OF NEW JERSEY VS. RASHAUN A. FENTRESS (14-04-0706, 14-08-1356, AND 14-08-1452, MONMOUTH COUNTY AND STATEWIDE) ( 2018 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-1720-16T1
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    RASHAUN A. FENTRESS, a/k/a
    SHAWN B. FENTRES,
    RASHUAN A. FENTRESS,
    RASHAUN BAN, ZEUS FENTRESS,
    RASHAUN ZUSE, and ALLAN
    FRANCIS,
    Defendant-Appellant.
    ————————————————
    Submitted September 13, 2018 – Decided December 27, 2018
    Before Judges Fisher and Suter.
    On appeal from Superior Court of New Jersey, Law
    Division, Monmouth County, Indictment Nos. 14-04-
    0706, 14-08-1356 and 14-08-1452.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Paul B. Halligan, Assistant Deputy Public
    Defender, of counsel and on the brief).
    Christopher J. Gramiccioni, Monmouth County
    Prosecutor, attorney for respondent (Lisa Sarnoff
    Gochman, Legal Assistant, of counsel and on the brief).
    PER CURIAM
    Defendant Rashaun A. Fentress appeals his September 23, 2016
    judgments of conviction, claiming he did not knowingly waive his right to
    counsel and was deprived of his right to represent himself, the court made an
    erroneous evidentiary ruling, and his standby counsel provided ineffective
    assistance, all of which deprived him of a fair trial. He also argues his sentences
    were illegal on a number of grounds. The State agrees, as do we, that defendant's
    sentence to a discretionary extended term and mandatory extended term in the
    same proceeding violated N.J.S.A. 2C:44-5(a)(2) and requires a remand for
    resentencing on the affected counts. We also agree that a remand is necessary
    to conduct a hearing about defendant's ability to pay before ordering restitution.
    We otherwise reject defendant's arguments and affirm his convictions and
    sentences that are unaffected by the remand.
    In April 2014, Officers Michael Boone and John Sarno of the Asbury Park
    Police Department were in a marked vehicle on patrol at 11:25 p.m. when
    Officer Boone thought he saw the driver of a blue four-door Mazda holding a
    cellphone to his ear as he slowed for a red light. Office Boone activated the
    overhead lights and, although the Mazda slowed at first to pull over, the driver
    made an abrupt left turn and accelerated. The officers pursued the Mazda, which
    A-1720-16T1
    2
    reached speeds up to seventy miles per hour in a twenty-five mile per hour zone,
    and made multiple turns. The officers discontinued pursuit shortly before the
    Mazda collided with a taxi at an intersection. The taxi driver and his passenger
    were injured. Defendant was driving the Mazda and was trapped inside it. Once
    extracted, a small bag of suspected marijuana was found in defendant's clothing.
    The bag was secured as evidence and testing confirmed it was 2.32 grams of
    marijuana.1 Defendant's cellphone was in his left front pocket.
    Defendant was indicted under Indictment No. 14-08-1356 (Indictment two
    or eluding incident) for second-degree eluding an officer and two counts of
    second-degree aggravated assault by eluding (one for the taxi passenger and the
    second for the taxi driver). 2 He also was charged with a disorderly persons
    offense for possession of marijuana. Motor vehicle summonses were issued for
    unlawful use of a cellphone, reckless driving, driving while revoked, speeding,
    failing to signal and failure to stop and yield.
    The case was scheduled for trial in June 2015, but postponed to September
    to address defendant's request that the court conduct an in-camera inspection of
    1
    There are 28.35 grams in an ounce.
    2
    Another count for third-degree theft of moveable property (the car) was
    dismissed prior to trial.
    A-1720-16T1
    3
    Officer Boone's personnel records. This delay gave defendant the opportunity
    to consult with an attorney in light of his complaint to the court that he was not
    "content" with the attorney assigned by the Public Defender's office to represent
    him. There is nothing in the record showing that he consulted with private
    counsel.
    On September 15, 2015, after conducting a hearing, the court granted
    defendant's request to represent himself at the trial, which was scheduled to
    commence the next day. His assigned public defender was appointed as standby
    counsel. The court denied defendant's request for an adjournment. The next
    day, September 16, defendant renewed his request for an adjournment—now for
    a period of three days—to obtain his own cellphone and medical records. This
    request was denied. The judge order the State to provide defendant's medical
    records and recognized that defendant could obtain his own phone records
    before the defense portion of the trial commenced.
    At the trial, standby counsel conducted the opening statement, the cross -
    examination of the State's witnesses and direct examination of defendant's
    witnesses.   Defendant did not testify.      Defendant conducted the closing
    argument. Throughout the trial, defendant had several private conversations
    with standby counsel.
    A-1720-16T1
    4
    Defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b),
    and two counts of second-degree aggravated assault by eluding, N.J.S.A. 2C:29-
    2(b). The trial judge found defendant guilty of the disorderly persons marijuana
    possession offense and motor vehicle offenses—except, the judge acquitted
    defendant of the unlawful use of a cellphone while driving charge because
    defendant's cellphone was found in his pocket.
    Two other indictments were returned against defendant on charges
    unrelated to the eluding incident and also are part of this appeal. Defendant pled
    guilty under Indictment No. 14-08-1452 (Indictment three) to two third-degree
    counts of distribution of CDS within 1000 feet of a school zone, N.J.S.A. 2C:35-
    7, for selling cocaine to an undercover police officer on two occasions. He also
    pled guilty under Indictment No. 14-04-0706 (Indictment one) to third-degree
    attempted fraudulent use of a credit card, N.J.S.A. 2C:5-1; 2C:21-6(h),
    admitting he attempted to use someone else's credit card at an Exxon gas station
    for goods and services.
    Defendant was sentenced on Indictments one, two and three in the same
    proceeding.     The court imposed an aggregate term of nineteen-years
    imprisonment, with thirteen-years and seven months without parole.
    A-1720-16T1
    5
    On Indictment one, defendant was sentenced to an ordinary term of five
    years for third-degree attempted fraudulent use of a credit card. This was
    concurrent to Indictment three but consecutive to Indictment two.            On
    Indictment two, involving the eluding-an-officer conviction and jury trial, the
    court imposed a discretionary extended term of twelve years on his conviction
    for second-degree aggravated assault on the taxi passenger by eluding, with an
    eighty-five percent period without parole eligibility. The eluding-an-officer
    conviction was merged into this. He received a concurrent ten-year ordinary
    term on the second count of aggravated assault on the taxi driver by eluding.
    Defendant's driver's license was suspended for six months for possession of
    marijuana.
    On Indictment three, for two third-degree CDS distribution charges within
    1000 feet of a school zone, defendant was sentenced to two concurrent
    mandatory extended terms of seven-years imprisonment, with three-and-one
    half years without parole.   These were consecutive to Indictment two, but
    concurrent to Indictment one.
    Defendant appeals a number of issues arising from his trial and sentencing
    as follows:
    A-1720-16T1
    6
    POINT I
    FENTRESS DID NOT MAKE A KNOWING AND
    INTELLIGENT WAIVER OF HIS RIGHT TO
    COUNSEL, RESULTING IN A STRUCTURAL
    ERROR OF HIS TRIAL THAT REQUIRES
    REVERSAL OF HIS CONVICTIONS. U.S. CONST.
    AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1
    PAR. 10.
    POINT II
    EVEN IF THIS COURT FINDS THAT FENTRESS
    MADE A KNOWING AND VOLUNTARY WAIVER
    OF HIS RIGHT TO COUNSEL, FENTRESS WAS
    EFFECTIVELY     DENIED   HIS   RIGHT    TO
    REPRESENT HIMSELF PRO SE BY THE TRIAL
    COURT'S      REFUSAL   TO    GRANT     AN
    ADJOURNMENT OF THE TRIAL DATE. U.S.
    CONST. AMENDS. VI, XIV; N.J. CONST. (1947),
    ART. 1 PAR. 10.
    POINT III
    IF THIS COURT WERE TO FIND THAT FENTRESS
    MADE A KNOWING AND INTELLIGENT WAIVER
    OF THE RIGHT TO COUNSEL, BUT THE COURT'S
    FAILURE TO GRANT AN ADJOURNMENT DID
    NOT AMOUNT TO STRUCTURAL ERROR, THE
    TRIAL COURT'S REFUSAL TO GRANT AN
    ADJOURNMENT OF THE TRIAL DATE AND ITS
    REFUSAL TO ADDRESS FENTRESS AS PRO SE
    COUNSEL, STILL ROBBED HIM OF A FAIR
    TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J.
    CONST. (1947), ART. 1 PAR. 10.
    A-1720-16T1
    7
    POINT IV
    THE TRIAL COURT IMPROPERLY FAILED TO
    LIMIT PREJUDICIAL CUMULATIVE OTHER-
    CRIMES OR BAD ACTS EVIDENCE IN
    VIOLATION OF EVIDENCE RULE 404(B) AND
    THEREFORE VIOLATED FENTRESS' RIGHT TO A
    FAIR TRIAL.
    POINT V
    TRIAL COUNSEL WAS INEFFECTIVE BY NOT
    SEEKING TO LIMIT THE AMOUNT OF EVIDENCE
    ADMITTED    AT    TRIAL  ON    FENTRESS'
    MARIJUANA POSSESSION.
    POINT VI
    THE TRIAL COURT IMPOSED AN ILLEGAL
    SENTENCE BY COMBINING A DISCRETIONARY
    EXTENDED TERM WITH A MANDATORY
    EXTENDED TERM, IMPOSING A DRUG-LAW
    PENALTY ON A NON-DRUG LAW CONVICTION,
    AND THE REASONS FOR IMPOSITION OF
    SENTENCE WERE INADEQUATE.
    I.
    Defendant argues he did not make a knowing and intelligent waiver of his
    right to counsel. This issue relates to his convictions under Indictment two, not
    to his guilty pleas under Indictment one and three, where he was represented by
    counsel from the Public Defender's office. Defendant contends the court's
    A-1720-16T1
    8
    hearing on this issue was not adequate under State v. Crisafi, 
    128 N.J. 499
    , 509-
    10 (1992) and under State v. Reddish, 
    181 N.J. 553
    , 593-95 (2004).
    We review a trial court's decision whether a defendant has knowingly,
    voluntarily, and intelligently waived his right to counsel for abuse of discretion.
    State v. DuBois, 
    189 N.J. 454
    , 475 (2007). "Both the United States Constitution
    and our New Jersey Constitution grant defendants charged with a criminal
    offense the right to have the assistance of counsel." State v. King, 
    210 N.J. 2
    ,
    16 (2012) (citing U.S. Const. amend. VI; N.J. Const. art. I ¶ 10). "The corollary"
    to that right "is the defendant's right to represent himself." 
    Ibid.
     (citing Faretta
    v. California, 
    422 U.S. 806
    , 814 (1975)). Prior to permitting a defendant to
    represent himself at trial, trial courts have "the duty to assure that a defendant's
    waiver of counsel is made 'knowingly and intelligently.'" 
    Id.
     at 18 (citing
    Crisafi, 
    128 N.J. at 509
    ). The inquiry must explore with a defendant:
    (1) dangers and disadvantages of self-representation;
    (2) nature of the charges against him, the statutory
    defenses to those charges, and the possible range of
    punishment; (3) technical problems he may encounter
    in acting as his own counsel and of the risks he takes if
    the defense is unsuccessful; (4) necessity that he
    conduct his defense in accordance with the relevant
    rules of criminal procedure and evidence, that a lack of
    knowledge of the law may impair his ability to defend
    himself, and that his dual role as attorney and accused
    might hamper the effectiveness of his defense; and (5)
    difficulties in acting as his own counsel and the court
    A-1720-16T1
    9
    should specifically advise the defendant that it would
    be unwise not to accept the assistance of counsel.
    [State v. Ortisi, 
    308 N.J. Super. 573
    , 587-88 (App. Div.
    1998) (citing Crisafi, 
    128 N.J. at 510-12
    ).]
    We have carefully reviewed the transcript of the court's hearing on
    defendant's request to represent himself and are satisfied the relevant issues were
    addressed. The court explained the charges against defendant in Indictment two
    and the elements comprising each charge.              He explained defendant's
    incarceration exposure. The court explained the risks and disadvantages to
    defendant of self-representation including that defendant would be waiving his
    ability to pursue ineffective assistance of counsel claims post-trial. Defendant
    was advised that difficulties could be presented such as arguing motions and that
    his lack of legal experience could put him at a disadvantage. He understood he
    needed to comply with court rules. The court explored why defendant wanted
    to represent himself, asking him multiple times to explain his position to the
    court "in his own words." The court explained that his assigned counsel had
    significant experience, that a jury trial is "infinitely complicated" and this was
    not to be "entertained lightly" because defendant was facing "very, very serious
    charges."
    A-1720-16T1
    10
    Defendant initially claimed he did not understand how he was "waiving
    his right to anything," by exercising his right to represent himself, the charges
    against him or the sentencing exposure. The trial court patiently explained these
    and other issues to defendant, until defendant indicated he understood. The
    record amply supports that defendant knowingly, voluntarily and intelligently
    waived his right to counsel after a thorough exploration with him of the ri sks of
    proceeding pro se.
    II.
    The court made clear its intent to proceed with the jury trial. Defendant
    argues that he was deprived of his ability to represent himself because the court
    denied his adjournment request.
    A trial court's denial of an adjournment request is reviewed under a
    deferential standard for abuse of discretion. State v. Miller, 
    216 N.J. 40
    , 65
    (2013). "A motion for an adjournment implicates a trial court's authority to
    control its own calendar," and courts have broad discretion on such matters.
    
    Ibid.
     Only where "the judge's exercise of discretion resulted in prejudice," will
    we set aside a conviction based on a judge's denial of an adjournment request.
    State v. Rodriguez, 
    254 N.J. Super. 339
    , 346 (App. Div. 1992).
    A-1720-16T1
    11
    There was no misapplication of discretion by the trial court in denying
    defendant's adjournment request. In June 2015, when trial was initially set to
    begin, defendant's attorney requested, and the court granted, an adjournment to
    permit the court to review in-camera certain personnel records of Officer Boone
    related to the high speed chase, and then to give the parties time to review the
    documents. Other pre-trial motions involving the admissibility of defendant's
    statement to the police and his possession of a small amount of marijuana were
    made and decided. The trial was postponed until September 15, 2015.
    When defendant waived his right to counsel on September 15, he asked to
    adjourn the case but was not specific about when or why. The next day, he asked
    for an adjournment for three days so he could obtain medical and phone records.
    The State objected to the adjournment.
    We are satisfied there was no abuse of discretion. Although the requested
    delay was for a brief period, it was for records already provided in disco very
    (medical records), or available to defendant (phone records), that were not
    germane to the eluding or aggravated assault charges. There was concern that
    further delay would cause a witness to be unavailable. The court had appointed
    standby counsel, who was familiar with the case, to assist defendant. Defendant
    A-1720-16T1
    12
    did not assert he was prejudiced by the lack of records nor argue with any
    specificity how he was prejudiced by the lack of adjournment.
    III.
    Standby counsel participated throughout the trial. Defendant argues that
    standby counsel's presence and the court's treatment of defendant deprived him
    of the ability to represent himself.
    We begin by finding no error in the court's appointment of standby
    counsel, as our courts have routinely held that such appointment is proper. See
    Reddish, 
    181 N.J. at 597
    . When determining whether a defendant's right to self-
    representation has been respected, "the primary focus must be on whether the
    defendant had a fair chance to present his case in his own way." McKaskle v.
    Wiggins, 
    465 U.S. 168
    , 177 (1984). To prove that participation of standby
    counsel violated a defendant's right to self-representation, "defendant must show
    that the participation either (1) deprived him of actual control over the case that
    he presented to the jury, or (2) destroyed the perception of the jury that defendant
    was representing himself and in control of the case." State v. Davenport, 
    177 N.J. 288
    , 302-03 (2003).
    Defendant was not deprived of control over his case. The court instructed
    defendant of his role as a pro se litigant, and the purpose of standby counsel.
    A-1720-16T1
    13
    The court explained that defendant was "in charge of the strategy for this case,"
    but that standby counsel was "there as an asset for [defendant]," and would assist
    him "if [he] want[ed] him to cross-examine a witness [or] if [he] want[ed] him
    to step in and give an opening or closing."
    Standby counsel took an active and substantial role in the trial. However,
    defendant consulted privately on multiple occasions with counsel, taking full
    opportunity to utilize him as a resource. The transcript supports that standby
    counsel did not usurp defendant's ability to control the litigation or its strategy.
    There is no merit to defendant's argument that standby counsel's
    participation destroyed the jury's perception he was pro se. The court referred
    to defendant and standby counsel as the "defense" and not as "counsel." Standby
    counsel made clear in his opening statement that he was there only to assist.
    IV.
    Defendant's appeal from his convictions under Indictment two raises an
    evidentiary issue under N.J.R.E. 404(b) about the admission of other-crimes
    evidence. Specifically, he argues it was error to admit evidence that his driver's
    license was suspended and that he was in possession of less than an ounce of
    marijuana at the time of the accident. The court gave limiting instructions to the
    jury during trial and during the charge on the law making clear that this evidence
    A-1720-16T1
    14
    was limited to the issue of motive to elude the police and could not be used to
    show defendant committed other crimes or wrong acts. Defendant did not object
    to the limiting instructions or charge.
    We review a trial court's determination regarding the admissibility of prior
    bad acts or other-crimes evidence for abuse of discretion. State v. Covell, 
    157 N.J. 554
    , 564 (1999). "A trial court's ruling on the admissibility of evidence is
    'subject to limited appellate scrutiny,'" and as such we accord a deferential
    standard of review. State v. Buckley, 
    216 N.J. 249
    , 260 (2013); State v. Perry,
    
    225 N.J. 222
    , 233 (2016). Only where a decision constitutes a "clear error in
    judgment," will an evidentiary ruling be overturned. Perry, 225 N.J. at 233
    (citing State v. Brown, 
    170 N.J. 138
    , 147 (2001)).
    Generally:
    [e]xcept as otherwise provided by Rule 608(b) evidence
    of other crimes, wrongs, or acts is not admissible to
    prove the disposition of a person in order to show that
    such person acted in conformity therewith. Such
    evidence may be admitted for other purposes, such as
    proof of motive, opportunity . . . when such matters are
    relevant to a material issue in dispute.
    [N.J.R.E. 404(b).]
    Four tests must be satisfied before such evidence is admitted against a
    criminal defendant. The proponent of the evidence must demonstrate that: (1)
    A-1720-16T1
    15
    the evidence of the other crime was relevant to a material issue; (2) it was similar
    in kind and reasonably close in time to the offense charged; (3) the evidence of
    the other crime was clear and convincing; and (4) the probative value of th e
    evidence outweighed by its apparent prejudice. See State v. Cofield, 
    127 N.J. 328
    , 338 (1992).
    We discern no abuse of discretion; the Cofield test was satisfied. The
    other-crimes evidence was limited to the issue of defendant's motive. It was
    relevant to that purpose, reasonably close in time to the offense (of eluding), the
    evidence was clear and convincing and any prejudice was addressed by an
    appropriate limiting instruction.
    V.
    Defendant argues he was denied the effective assistance of counsel
    because his public defender, although originally objecting to the admission of
    the marijuana evidence, then agreed to it. We decline to consider defendant's
    argument regarding ineffective assistance of counsel, which is more
    appropriately addressed in a post-judgment petition. 3 See State v. Preciose, 
    129 N.J. 451
    , 460 (1992).
    3
    We render no judgment about whether defendant can pursue post-judgment
    relief having represented himself pro se.
    A-1720-16T1
    16
    VI.
    Defendant appeals his sentences on multiple grounds.                 The State
    acknowledges that a remand is necessary to resentence defendant under
    Indictment two and three because the trial court imposed a discretionary term
    and a mandatory extended term in the same sentencing proceeding in violation
    of N.J.S.A. 2C:44-5(a)(2). See State v. Robinson, 
    217 N.J. 594
    , 609-610 (2014).
    The State also acknowledges that a remand is necessary under Indictment two
    before restitution can be imposed, under count three. See N.J.S.A. 2C:44-2(b)
    and (c). Defendant's other sentencing related arguments are without merit.
    A trial court's sentencing decision shall not be disturbed absent an abuse
    of discretion or where the trial judge is clearly mistaken. State v. Fuentes, 
    217 N.J. 57
    , 70 (2014); see State v. Jabbour, 
    118 N.J. 1
    , 6 (1990). A reviewing court
    "must not substitute its judgment for the sentencing court." Fuentes, 217 N.J. at
    70 (citing State v. O'Donnell, 
    117 N.J. 210
    , 215 (1989)). Rather, the court must:
    affirm [a] sentence unless: (1) the sentencing guidelines
    were violated; (2) the aggravating and mitigating
    factors found by the sentencing court were not based
    upon competent and credible evidence in the record; or
    (3) "the application of the guidelines to the facts of [the]
    case makes the sentence clearly unreasonable so as to
    shock the judicial conscience."
    [Ibid. (citing State v. Roth, 
    95 N.J. 334
    , 364-65
    (1984)).]
    A-1720-16T1
    17
    When making a determination regarding a defendant's sentence, the court
    must identify the applicable aggravating and mitigating factors set forth in
    N.J.S.A. 2C:44-1. R. 3:21-4(g); Fuentes, 217 N.J. at 72. The court's findings
    for each factor "must be supported by 'competent, reasonably credible
    evidence.'" Fuentes, 217 N.J. at 72 (citing Roth, 
    95 N.J. at 363
    ).
    The court found aggravating factor three 4 (the risk that defendant would
    commit another offense), six 5 (the extent of defendant's prior criminal record
    and seriousness of the offense), nine 6 (the need to deter defendant and others
    from violating the law), and thirteen 7 (defendant's use of a stolen motor vehicle
    in attempting to flee) in sentencing defendant under the three indictments. He
    found no mitigating factors. See N.J.S.A. 2C:44-1(b)(1) to (13).
    Defendant contends the court erred by finding aggravating factor thirteen.
    Count one of Indictment two included the allegation that defendant was
    operating a stolen motor vehicle while engaging in the criminal activity charged
    4
    N.J.S.A. 2C:44-1(a)(3).
    5
    N.J.S.A. 2C:44-1(a)(6).
    6
    N.J.S.A. 2C:44-1(a)(9).
    7
    N.J.S.A. 2C:44-1(a)(13).
    A-1720-16T1
    18
    although it was dismissed prior to trial. The court was aware of this allegation.
    Sentencing judges are not restricted to considering only facts that are found by
    a jury.     See Alleyne v. United States, 
    570 U.S. 99
    , 116 (2013).         Even if
    application of aggravating factor thirteen were in error, there was adequate
    support for the court's application of other aggravating factors, including three,
    six and nine.
    We also discern no error by the trial court in its decision not to find any
    mitigating factors. Mitigating factor four 8 (substantial grounds to excuse or
    justify conduct) was not raised before the trial court nor does defendant explain
    how this applied. Mitigating factor two 9 (defendant did not contemplate conduct
    would cause harm) did not apply because defendant should have considered that
    his attempt to elude the police at seventy miles per hour in a twenty-five miles
    per hour speed zone could cause or threaten serious harm. Mitigating factor
    eleven 10 (imprisonment would entail excessive hardship to defendant or
    dependents) did not apply because defendant lived with his sister and her
    8
    N.J.S.A. 2C:44-1(b)(4).
    9
    N.J.S.A. 2C:44-1(b)(2).
    10
    N.J.S.A. 2C:44-1(b)(11).
    A-1720-16T1
    19
    children; there was no proof defendant was a custodial parent of his own
    children.
    Defendant was not illegally sentenced for use of a cellphone while driving.
    Although the court initially imposed penalties for this, the court corrected itself
    in a subsequent proceeding because the court had acquitted defendant of this
    charge.
    The court did not impose the $500 Drug Enforcement and Demand
    Reduction (DEDR) penalty incorrectly; it was applied to the disorderly persons
    offense for possession of marijuana. There also was a $1000 DEDR penalty for
    each third-degree CDS charge under Indictment three, as authorized by N.J.S.A.
    2C:35-15(a)(1)(c).
    The judgment for restitution on Indictment two (14-08-1356) is reversed
    and remanded for a restitution hearing.       The discretionary extended term
    sentence for aggravated assault by eluding under Indictment two (14-08-1356)
    and the mandatory extended term sentences for two counts of third-degree CDS
    distribution under Indictment three (14-08-1452) are reversed and remanded for
    resentencing. The convictions and sentences otherwise are affirmed.
    A-1720-16T1
    20