STATE OF NEW JERSEY v. TERRI BAILEY (18-08-1277, ATLANTIC COUNTY AND STATEWIDE) ( 2022 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-1513-19
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    TERRI BAILEY, a/k/a
    TERRI FRANKLIN, TERRY
    BAILEY, and DAVID D. JONES,
    Defendant-Appellant.
    _____________________________
    Argued November 29, 2021 – Decided January 31, 2022
    Before Judges Messano and Enright.
    On appeal from the Superior Court of New Jersey, Law
    Division, Atlantic County, Indictment No. 18-08-1277.
    Al Glimis, Designated Counsel, argued the cause for
    appellant (Joseph E. Krakora, Public Defender,
    attorney; Al Glimis, on the brief).
    Steven K. Cuttonaro, Deputy Attorney General, argued
    the cause for respondent (Andrew J. Bruck, Acting
    Attorney General, attorney; Steven K. Cuttonaro, of
    counsel and on the briefs).
    Appellant filed a pro se supplemental brief.
    PER CURIAM
    An Atlantic County grand jury returned an indictment charging defendant
    Terri Bailey with second-degree unlawful possession of a handgun without a
    permit, N.J.S.A. 2C:39-5(b)(1) (count one); fourth-degree obstructing the
    administration of law, N.J.S.A. 2C:29-1(a) (count two); fourth-degree resisting
    arrest, N.J.S.A. 2C:29-2(a)(2) (count three); second-degree certain persons not
    to possess a firearm, N.J.S.A. 2C:39-7(b) (count four); and first-degree unlawful
    possession of a handgun by an individual with a prior conviction for a crime
    enumerated in N.J.S.A. 2C:43-7.2(d),1 N.J.S.A. 2C:39-5(j) (subsection (j))
    (count five). At trial, before the jury was selected, the State dismissed counts
    one through four without objection.
    The jury convicted defendant of the remaining count, and the State moved
    to sentence him as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The
    judge granted the State's motion and sentenced defendant to an extended,
    1
    N.J.S.A. 2C:43-7.2 is the No Early Release Act, commonly referred to as
    NERA.
    A-1513-19
    2
    twenty-five-year term of imprisonment, with a twelve-and-one-half year period
    of parole ineligibility. 2
    Defendant raises the following points for our consideration:
    POINT I
    THE    REPEATED       REFERENCE      TO THE
    UNSANITIZED DETAILS OF MR. BAILEY'S
    PREDICATE CONVICTION DEPRIVED HIM OF A
    FAIR TRIAL. (Partially raised below)
    POINT II
    MR. BAILEY'S SENTENCE IS MANIFESTLY
    EXCESSIVE AND UNDULY PUNITIVE 3
    In a supplemental pro se brief, defendant makes the following arguments:
    POINT ONE
    THE DEFENDANT DOES NOT HAVE A
    PREDICATE NERA CONVICTION AS REQUIRED
    BY N.J.S.A. 2C:39-5(j), THUS HIS CONVICTION
    AND SENTENCE VIOLATES THE UNITED
    STATES CONSTITUTION V, VI, VIII, AND XIV
    AMENDMENTS, AND THE NEW JERSEY STATE
    CONSTITUTION ART. 1, PAR. 10[.] (Not raised
    below)
    2
    The State also moved pursuant to N.J.S.A. 2C:43-6(c), which mandates an
    extended term of imprisonment for a defendant convicted of certain Chapter 39
    crimes if previously convicted of certain crimes enumerated in N.J.S.A. 2C:44 -
    3(d). The judge denied this motion, finding subsection (j) was not one of the
    Chapter 39 crimes enumerated in N.J.S.A. 2C:43-6(c).
    3
    We omitted the subpoints in defendant's brief.
    A-1513-19
    3
    POINT TWO
    BECAUSE THE DEFENDANT WAS NOT TRIED OR
    CONVICTED FOR A VIOLATION OF SUBSECTION
    (a), (b), (c), or (f) OF N.J.S.A. 2C:39-5(j), WHICH IS
    A REQUISITE COMPONENT OF THE STATUTE[,]
    HIS CONVICTION AND SENTENCE SHOULD BE
    VACATED[.] (Not raised below)
    POINT THREE
    THE DEFENDANT WAS DENIED HIS DUE
    PROCESS RIGHTS TO A FAIR TRIAL BECAUSE
    SERGEANT MOYNIHAN TESTIFIED THAT A
    STILL PHOTOGRAPH OF THE PERPETRATOR
    OBTAINED FROM THE VIDEO SURVEILLANCE
    FOOTAGE WAS THE DEFENDANT WHEN THE
    IDENTITY OF THE PERSON WAS A QUESTION
    SOLELY FOR THE JURY THEREFORE THE
    CONVICTION          SHOULD BE REVERSED[.]
    (Partially raised below)
    POINT FOUR
    THE   DEFENDANT        WAS     DEPRIVED OF
    EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
    WHEN SHE ENTERED INTO A STIPULATION
    THAT CONCEDED THE DEFENDANT'S GUILT TO
    THE REQUISITE ELEMENTS OF THE CHARGED
    OFFENSE, AND SHE FAILED TO SUBJECT THE
    STATE'S CASE TO AN ADVERSARIAL TESTING
    THEREFORE THE CONVICTION SHOULD BE
    REVERSED[.] (Not raised below)
    We have considered these arguments in light of the record and applicable legal
    standards.   We affirm defendant's conviction and sentence.      However, we
    A-1513-19
    4
    remand the matter to the trial court to immediately conduct a hearing on
    defendant's claim of ineffective assistance of trial counsel.
    I.
    Before opening statements, the prosecutor and defense counsel advised
    the judge of two stipulations for her to read to the jury. The parties stipulated
    defendant "did not have a permit to possess a weapon" on the day in question.
    The second stipulation was that defendant "ha[d] a prior conviction of [an]
    enumerated crime in N.J.S.A. 2C:43-7.2, that being kidnapping in the first
    degree with a date of conviction of November 9th, 1989." The judge asked:
    "So, you're not going to be introducing any judgment of conviction . . . ?" The
    prosecutor said she still intended to introduce a redacted version.     Defense
    counsel seemed surprised, stating, "I thought that was the whole point of the
    stipulation."
    Defense counsel told the judge the "certified copy of the judgment of
    conviction does not delineate the degree of the offense so the stipulation should
    not either." When the prosecutor pointed out the "degree" was referenced on
    the second page of the certified copy, defense counsel said she no longer had
    any objection. Counsel then noted the certified copy contained the "penalties"
    associated with defendant's sentence, and the prosecutor agreed to redact those
    A-1513-19
    5
    from the document. After further colloquy, defense counsel reiterated that she
    only objected to inclusion of the "fines and penalties page" of the certified
    judgment of conviction.4
    In her preliminary instructions, the judge told the jury that the parties
    stipulated defendant was "previously . . . convicted of . . . kidnapping in the first
    degree with a date of conviction of November 9th, 1989." She also told the jury
    that it would have "a judgment of conviction which actually will depict the
    information I just gave you . . . in the jury room for your deliberations." In her
    opening statement, the prosecutor reiterated defendant's prior conviction was for
    kidnapping; in her opening statement, defense counsel acknowledged that fact,
    but told jurors the only relevant issue in the case was identification.
    The trial testimony was brief. On March 29, 2018, around 4:52 p.m.,
    Police Officer Thomas Moynihan of the Atlantic City Police Department was
    dispatched to an address in response to a ShotSpotter alert. While canvassing
    the area, Moynihan received information that a black male with dreadlocks and
    a silver car were involved. Moynihan saw three men, one of whom matched the
    description, near a silver car. At trial, he identified defendant as one of these
    4
    Defendant's 1989 judgment of conviction for kidnapping is not in the appellate
    record.
    A-1513-19
    6
    men. Moynihan said on that day, defendant was wearing a gray "hoodie" and
    black and white baseball cap.
    Moynihan observed the men "for a few moments" before approaching. He
    saw defendant "reach around his waistband, around his hoodie pockets," and
    Moynihan instructed him to remove his hands from his pockets and stop moving.
    Defendant refused to comply and "took off running." Moynihan followed.
    During the chase, Moynihan heard "something hit the ground," and another
    officer who joined the pursuit, Thomas Gilardi, testified that he saw an
    automatic handgun fall from the fleeing man's waistband. Gilardi's bodycam
    video footage documented his recovery of the weapon, and the video was played
    for the jury. The officers lost the suspect who ran through the entrance gate of
    and into a housing site; they were unable to locate him.
    Moynihan reviewed video surveillance footage in the housing site's
    security booth near the gate, as well as video from a surveillance camera at a
    nearby school. Moynihan took still photos of the security booth's video, which
    he identified for the jury as showing defendant. The officer also identified for
    the jury the school's video footage. It showed Moynihan approaching three men
    on the sidewalk, the officer patting down one of the men, and one of the other
    men fleeing down the sidewalk with Moynihan in pursuit.
    A-1513-19
    7
    About ninety minutes later, after speaking with other officers, Moynihan
    was able to "put the face" of the person he chased to "the name." Several days
    later, on April 5, 2018, Detective Ermindo Marsini was on surveillance at a
    location where he believed defendant might be and arrested him.
    Michael Holts testified for the defense. Holts was working as a security
    guard at the housing site on the day in question. He testified defendant was
    present at the site before police arrived. Holts said defendant was wearing black
    and gold clothing emblematic of Holts' favorite football team, the Pittsburgh
    Steelers, not a gray hoodie like the man depicted in the video and described by
    Officer Moynihan. Another defense witness, Donette Faulkner lived next door
    to defendant's mother at the housing site, where Faulkner also worked in the
    security booth. Faulkner testified that when police arrived to look at the video
    surveillance footage and were in the security booth with her, defendant was
    present at the site and walked out of the entrance gate.
    In summation, defense counsel argued that defendant was not the person
    shown in the surveillance videos and not the person Moynihan chased. She only
    briefly mentioned the predicate offense of kidnapping, noting defendant was a
    juvenile when convicted of that crime. The prosecutor's summation referenced
    defendant's kidnapping conviction more frequently, but without particular
    A-1513-19
    8
    emphasis. The judge's final instructions tracked the model charge. See Model
    Jury Charges (Criminal), "Unlawful Possession of a Handgun Prior NERA
    Conviction (First Degree) (N.J.S.A. 2C:39-5(j))" (approved June 11, 2018) (the
    Model Charge). During the charge, the judge told the jury several times that
    defendant's predicate NERA conviction was kidnapping.
    II.
    Before turning to the arguments raised in Point I of counsel's brief, and
    Point Four of defendant's pro se brief, we briefly address the remaining points
    on appeal, none of which merit reversal.         Defendant claims he was not
    previously convicted of a requisite predicate crime under subsection (j) because
    he was convicted of kidnapping in 1989, before NERA was enacted. In pertinent
    part, subsection (j) makes it a first-degree crime for anyone previously convicted
    of a crime listed in subsection (d) of NERA to unlawfully possess a handgun.
    Subsection (j) does not refer to NERA at all; it only requires that a defendant be
    previously convicted of a crime listed in N.J.S.A. 2C:43-7.2(d). Defendant was
    convicted of kidnapping, N.J.S.A. 2C:13-1, a crime enumerated in subsection
    (d) of NERA. Those facts are undisputed. The argument requires no further
    discussion. R. 2:11-3(e)(2).
    A-1513-19
    9
    Defendant contends the jury never convicted him of unlawful possession
    of a handgun pursuant to N.J.S.A. 2C:39-5(b), one offense for which a
    conviction is necessary to prove a violation of subsection (j). Even though the
    State dismissed count one of the indictment, it introduced proof of all the
    elements of unlawful possession, and the judge's charge instructed the jury that
    it must find beyond a reasonable doubt: (1) there was a handgun, (2) defendant
    knowingly possessed the handgun, (3) defendant did not have a permit to possess
    the handgun, and (4) defendant had a prior conviction of an enumerated offense
    under N.J.S.A. 2C:43-7.2(d), in this case, kidnapping. The argument requires
    no further discussion. R. 2:11-3(e)(2).
    Defendant argues that Moynihan's testimony identifying him as the man
    in the video stills and surveillance footage was impermissible lay opinion .
    Because there was no objection, we review the argument for plain error. R.
    2:10-2.
    "Lay opinion is admissible 'if it falls within the narrow bounds of
    testimony that is based on the perception of the witness and that will assist the
    jury in performing its function.'" State v. Sanchez, 
    247 N.J. 450
    , 466 (2021)
    (quoting State v. Singh, 
    245 N.J. 1
    , 14 (2021)). In Sanchez, the Court held the
    defendant's parole officer "became familiar with defendant's appearance by
    A-1513-19
    10
    meeting with him on more than thirty occasions during his period of parole
    supervision. Her identification of defendant as the front-seat passenger in the
    surveillance photograph was 'rationally based on [her] perception,' as N.J.R.E.
    701 requires." 
    Id. at 469
     (alteration in original). The Court also concluded the
    parole officer's opinion would assist the jury, because her "contacts with
    defendant were more than sufficient to enable her to identify him in the
    surveillance photograph more accurately than a jury could." 
    Id. at 474
    .
    The same is true in this case. Moynihan can be seen in the school
    surveillance video approaching a group of three men, one of whom he testified
    was defendant. After being in close proximity with defendant, albeit briefly,
    Moynihan identified the man seen running away as defendant. Moynihan chased
    that man, who entered a housing site through a security gate; Moynihan viewed
    video footage shortly thereafter, taking still photographs of that footage to
    preserve its images.   He testified the man seen in those photographs was
    defendant, who Moynihan identified in court. There was no error in admitti ng
    this testimony.
    Lastly, we find no reason to reverse defendant's sentence. An appellate
    court reviews a sentence "in accordance with a deferential standard." State v.
    Trinidad, 
    241 N.J. 425
    , 453 (2020) (quoting State v. Fuentes, 
    217 N.J. 57
    , 70
    A-1513-19
    11
    (2014)). We defer to the sentencing court's factual findings and should not
    "second-guess" them. State v. Case, 
    220 N.J. 49
    , 65 (2014). An appellate court
    must affirm a sentence "even if [it] would have arrived at a different result, as
    long as the trial court properly identifies and balances aggravating and
    mitigating factors that are supported by competent credible evidence in the
    record." State v. Grate, 
    220 N.J. 317
    , 337 (2015) (quoting State v. Lawless, 
    214 N.J. 594
    , 606 (2013)).
    The judge found aggravating factors three, six and nine. See N.J.S.A.
    2C:44-1(a)(3) (the risk of re-offense); (a)(6) (defendant's prior criminal history);
    and (a)(9) (the need to deter defendant and others). These were amply supported
    by evidence in the record, including defendant's prior criminal convictions and
    history of juvenile delinquency. The judge found no mitigating factors. She
    concluded the aggravating factors "clearly and substantially outweigh[ed] the
    non-existing mitigating factors," and, citing State v. Pierce, 
    188 N.J. 155
     (2006),
    she determined a discretionary extended term was appropriate.
    Defendant contends the judge erred in failing to find mitigating factor
    eleven, N.J.S.A. 2C:44-1(b)(11), that his imprisonment would result in an
    excessive hardship to his family. However, the judge did consider that factor
    and concluded while "any type of incarceration by any defendant is a hardship,"
    A-1513-19
    12
    there was nothing presented demonstrating a particular hardship in this case.
    We agree.
    While this sentence was harsh, defendant was convicted of a first-degree
    crime, was indisputably eligible for an extended term as a persistent offender,
    and the sentence imposed does not shock our judicial conscience. State v.
    Tillery, 
    238 N.J. 293
    , 323 (2019).
    III.
    In Point I, defendant contends it was error to permit the jury to know the
    "unsanitized details" of his prior conviction. In his pro se brief, defendant
    contends trial counsel provided ineffective assistance because she stipulated to
    a prior conviction in the first place and did not put the State to its proofs. The
    State argues defendant is barred from raising this argument since counsel agreed
    to the stipulation and admission of the redacted judgment of conviction.
    Alternatively, the State contends any error was harmless.
    We are unaware of any reported case addressing subsection (j), which was
    enacted in 2013. The statute's structure is similar to the "certain persons" statute,
    N.J.S.A. 2C:39-7(b)(1), which makes it a second-degree crime for any person
    previously convicted of certain crimes, including kidnapping, to "purchase[],
    A-1513-19
    13
    own[], possess[] or control[]" a firearm.5 The model jury charges for both
    crimes are virtually identical. We therefore look to case law developed under
    N.J.S.A. 2C:39-7(b)(1) in addressing defendant's arguments.
    Frequently, as in this case, a defendant indicted for violating the certain
    persons statute is also charged in the same indictment for the possessory
    weapons offense. In those circumstances, the trial must be bifurcated , with the
    jury first considering guilt as to the possessory offense without being tol d of the
    prior predicate conviction. See State v. Ragland, 
    105 N.J. 189
    , 194 (1986)
    ("Severance is customary and presumably automatic where it is requested
    because of the clear tendency of the proof of the felony conviction to prejudice
    trial of the separate charge of unlawful possession of a weapon." (emphasis
    added)). However, in State v. Brown, the Court held that when the State
    dismisses the possessory offense and tries the defendant solely on the certain
    persons count, bifurcation is unnecessary. 
    180 N.J. 572
    , 582 (2004). Critically,
    to ameliorate "any potential for prejudice," the Court required "sanitization of
    the predicate offense." 
    Id. at 584
    . The Court held: "if defendant stipulates to
    the offense, the jury need be instructed only that defendant was convicted of a
    5
    As noted, defendant was indicted for violating N.J.S.A. 2C:39-7(b) in the
    dismissed count four of the indictment.
    A-1513-19
    14
    predicate offense. If the defendant does not stipulate, then the trial court should
    sanitize the offense or offenses and limit the evidence to the date of the
    judgment." 
    Id. at 585
    .
    After Brown, the certain persons model charge was amended:
    In explaining what crimes are set forth as
    predicate offenses in N.J.S.A. 2C:39-7(b), the model
    jury charge further explains how to sanitize the record
    of a defendant's predicate offense. Specifically, the
    charge notes:
    Unless the defendant stipulates, the prior
    crimes should be sanitized. Thus, the trial
    court should refer to them as crime(s) of
    the appropriate degree. For example, if the
    offense were aggravated sexual assault, the
    court would indicate that defendant
    previously was convicted of a crime of the
    first degree. Nothing prevents a defendant,
    however, from choosing to inform the jury
    of the name of the prior crime of which
    he/she was convicted.
    [State v. Bailey, 
    231 N.J. 474
    , 487 (2018) (quoting
    Model Jury Charges (Criminal), "Certain Persons Not
    to Have Any Firearms (N.J.S.A. 2C:39-7(b)(1)" at 1 n.4
    (rev. June 13, 2005)).]
    In Bailey, the defendant refused to stipulate to the predicate offense, and
    hewing closely to the guidance in Brown and the model charge, the judge
    redacted the predicate judgments of conviction "so as to include only the date
    and degree of each offense." 231 N.J. at 478–79 (2018). On appeal, we found
    A-1513-19
    15
    the continued use of the model charge "disquieting," because the State
    introduced "no proof of any predicate crime"; nonetheless, we affirmed the
    defendant's conviction finding any error was invited. Id. at 480.
    The Court reversed, holding "[t]he over-sanitization called for in the
    model charge inject[ed] a constitutional defect into any trial on a certain persons
    offense where a defendant declines to stipulate," because it relieved the State of
    "prov[ing] that the defendant was convicted of an enumerated predicate offense
    and later possessed a firearm." Id. at 488. The Court explained:
    If a defendant chooses to stipulate, evidence of
    the predicate offense is extremely limited: "[t]he most
    the jury needs to know is that the conviction admitted
    by the defendant falls within the class of crimes that . . .
    bar a convict from possessing a gun[.]" A defendant
    who stipulates can therefore prevent the State from
    presenting evidence of the name and nature of the
    offense. Provided that the stipulation is a knowing and
    voluntary waiver of rights, placed on the record in
    defendant's presence, the prosecution is limited to
    announcing to the jury that the defendant has
    committed an offense that satisfies the statutory
    predicate-offense element.
    [Ibid. (alterations in original) (emphasis added)
    (quoting Old Chief v. United States, 
    519 U.S. 172
    , 190–
    91 (1997)).]
    However, "[w]hen a defendant refuses to stipulate to a predicate offense under
    the certain persons statute, the State shall produce evidence of the predicate
    A-1513-19
    16
    offense: the judgment of conviction with the unredacted nature of the offense,
    the degree of offense, and the date of conviction." 
    Id.
     at 490–91. The Court
    also concluded the invited error doctrine did not apply "because the error cut
    mortally into defendant's due process right to have the jury decide each element
    beyond a reasonable doubt." Id. at 490. The Court referred the matter to its
    Committee on Model Criminal Jury Charges for revision. Id. at 491.
    The Committee's action was swift. The current certain persons model jury
    charge provides: "If defendant is stipulating to the predicate offense, do not
    read the crime listed in the Certain Persons count."      Model Jury Charges
    (Criminal), "Certain Persons Not To Have Any Firearms (N.J.S.A. 2C:39-
    7(b)(1))" at 1 n.3 (revised Feb. 12, 2018) (emphasis added). Citing Brown and
    Bailey, the charge now instructs judges
    if defendant stipulates to the offense, the jury must be
    instructed only that defendant was convicted of a
    predicate offense[]. Defendant’s stipulation must be a
    knowing and voluntary waiver of rights, placed on the
    record in defendant’s presence; the prosecution is
    limited to announcing to the jury that the defendant has
    committed an offense that satisfies the statutory
    predicate-offense element.
    [Ibid. n.6 (emphasis added).]
    A-1513-19
    17
    The model charge for subsection (j), however, only provides the following
    footnote: "If defendant is stipulating to the predicate offense, do not read the
    crime listed in the Certain Persons count." Id. at 1 n.1.
    We have long recognized that in a prosecution under N.J.S.A. 2C:39-7(b),
    the court must permit a defendant to stipulate to the predicate conviction. State
    v. Alvarez, 
    318 N.J. Super. 137
    , 152–54 (App. Div. 1999); see also Old Chief,
    
    519 U.S. at 191
     (holding "it was an abuse of discretion to admit the record when
    an admission was available"). As future Justice Virginia A. Long wrote for our
    court, "[t]he specifics of defendant's prior crimes have no evidentiary
    significance beyond a stipulation that defendant falls within the class of
    offenders our Legislature thought should be barred from possessing weapons."
    Alvarez, 
    318 N.J. Super. at 153
    . See Bailey, 231 N.J. at 488 ("[T]he prosecution
    is limited to announcing to the jury that the defendant has committed an offense
    that satisfies the statutory predicate-offense element."). We see no principled
    reason why these same tenets should not apply to prosecutions under subsection
    (j).
    In this case, however, defense counsel both stipulated that defendant had
    previously been convicted of a predicate crime enumerated in N.J.S.A. 2C:43 -
    7.2(d) and agreed the jury would be told of the specific crime, kidnapping in the
    A-1513-19
    18
    first degree. Additionally, despite entering a stipulation, counsel only voiced
    limited objection to introduction of the actual judgment of conviction in
    evidence, redacted only to delete the "penalties" imposed; during deliberations
    therefore, the jury had a document stating defendant had been convicted of first-
    degree kidnapping in 1989.
    Undoubtedly, the judge's failure to "sanitize" defendant's kidnapping
    conviction does not provide a basis to reverse because any error in that regard
    was invited. See State v. A.R., 
    213 N.J. 542
    , 561 (2013) ("Under that settled
    principle of law, trial errors that 'were induced, encouraged or acquiesced in or
    consented to by defense counsel ordinarily are not a basis for reversal on
    appeal.'" (quoting State v. Corsaro, 
    107 N.J. 339
    , 345 (1987))). And, unlike
    Bailey, defense counsel's decision in this case did not relieve the prosecutor of
    the requirement to prove all elements of the offense, a structural error that the
    Court in Bailey held could not be harmless. As the State argued before us,
    defendant was free to stipulate and free to choose what that stipulation would
    be.
    Defendant's argument in his pro se brief that trial counsel provided
    ineffective assistance because she agreed to stipulate to a qualifying predicate
    crime lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-
    A-1513-19
    19
    3(e)(2).   Counsel's decision to stipulate, particularly when the State had a
    judgment of conviction available for introduction in evidence, made eminent
    good sense; not so, however, as to counsel's decision to agree to a stipulation
    that identified the predicate crime and not object to admission of the redacted
    judgment of conviction that included the same information.
    "Generally, ineffective assistance of trial counsel claims are not
    entertained 'on direct appeal because such claims involve allegations and
    evidence that [normally] lie outside the trial record.'" State v. Veney, 
    409 N.J. Super. 368
    , 386–87 (App. Div. 2009) (alteration in original) (quoting State v.
    Castagna, 
    187 N.J. 293
    , 313 (2006)). "However, when the trial itself provides
    an adequately developed record upon which to evaluate defendant's claims,
    appellate courts may consider the issue on direct appeal."          
    Ibid.
     (quoting
    Castagna, 
    187 N.J. at 313
    ). As in Veney, we largely agree that this is such a
    case.
    To prevail on an ineffective assistance of counsel (IAC) claim, a defendant
    must satisfy the two-prong test set forth in Strickland v. Washington, 
    466 U.S. 668
    , 694 (1984), and recognized by our Supreme Court in State v. Fritz, 
    105 N.J. 42
    , 58 (1987). A defendant must first show "that counsel made errors so
    serious that counsel was not functioning as the 'counsel' guaranteed . . . by the
    A-1513-19
    20
    Sixth Amendment." Fritz, 
    105 N.J. at 52
     (quoting Strickland, 
    466 U.S. at 687
    ).
    As to this prong, "there is 'a strong presumption that counsel's conduct falls
    within the wide range of reasonable professional assistance,' [and t]o rebut that
    strong presumption, a defendant must establish that trial counsel's actions did
    not equate to 'sound trial strategy.'"      Castagna, 
    187 N.J. at 314
     (quoting
    Strickland, 
    466 U.S. at 689
    ). Defense counsel's decision to tell the jury that her
    client was convicted of first-degree kidnapping, when the actual crime need not
    have been disclosed, was the result of deficient performance, not sound trial
    strategy, as the State contends in its supplemental brief.
    Additionally, to succeed on an IAC claim, a defendant must prove he
    suffered prejudice. Strickland, 
    466 U.S. at 687
    . A defendant must show by a
    "reasonable probability" that the deficient performance affected the outcome.
    Fritz, 
    105 N.J. at 58
    . "A reasonable probability is a probability sufficient to
    undermine confidence in the outcome." State v. Pierre, 
    223 N.J. 560
    , 583 (2015)
    (quoting Strickland, 
    466 U.S. at 694
    ; Fritz, 
    105 N.J. at 52
    ). In general, "only an
    extraordinary deprivation of the assistance of counsel triggers a presumption of
    prejudice." State v. Miller, 
    216 N.J. 40
    , 70 (2013) (citing Bell v. Cone, 535 U.S
    685, 695–96 (2002)).
    A-1513-19
    21
    In Veney, among other things, the defendant was charged with the
    possessory weapon offense under N.J.S.A. 2C:39-5(b), and the certain persons
    offense under N.J.S.A. 2C:39-7(b). 
    409 N.J. Super. at 373
    . Like here, the
    prosecutor dismissed all counts of the indictment against the defendant,
    including count one that charged him with unlawful possession, and tried the
    case solely on the certain persons offense. 
    Id. at 374
    . The jury convicted the
    defendant, but the judge subsequently granted his motion notwithstanding the
    verdict, finding the defendant's prior conviction was not for one of the statutory
    predicate crimes. 
    Id. at 375
    . The defendant then pled guilty to the unlawful
    possession of a handgun, count one of the indictment. 
    Id.
     at 376–77.
    On direct appeal, the defendant raised an IAC claim. 
    Id. at 377
    . We
    rejected the defendant's contention that counsel provided ineffective assistance
    because prosecution of count one was barred by principles of double jeopardy.
    
    Id. at 382
    . However, we concluded the defendant's subsequent prosecution
    under count one violated the Code's "mandatory joinder provision," N.J.S.A.
    2C:1-8(b), and Rule 3:15-1(b), and was fundamentally unfair. 
    Id.
     at 384–85.
    We also determined that the existing record was sufficient to conclude the
    defendant satisfied the two prongs of Strickland. 
    Id. at 387
    . We held that
    defense counsel's failure to move for formal dismissal of count one prior to the
    A-1513-19
    22
    defendant's guilty plea "cannot be deemed trial strategy," and that failure
    "denied [the] defendant the effective assistance of trial counsel." 
    Id. at 388
    .
    In State v. Allah, the Court considered the defendant's IAC claim on the
    existing record and concluded that trial counsel's failure to file a meritorious
    motion to dismiss a second prosecution on double jeopardy grounds
    demonstrated deficient performance, finding "[n]o assertion of strategy
    complicates this analysis." 
    170 N.J. 269
    , 285 (2002). The Court also found the
    defendant had been prejudiced, noting "[a]t the very least, had counsel filed the
    motion, defendant's claim of double jeopardy would have been preserved.
    Counsel's inaction plainly prejudiced defendant." 
    Id. at 286
    .
    Unlike Veney and Allah, where the defendants were forced to undergo a
    second trial or enter a guilty plea because of counsel's deficient performance,
    defendant here received competent representation in all aspects of the trial, but
    for the admission of evidence that he had been convicted previously of
    kidnapping in the first degree. Yet, it is indeed difficult to see how permitting
    the jury to know the nature of defendant's prior conviction, when an avoidable
    alternative was available, did not affect the outcome of the case. Fritz, 
    105 N.J. at 58
    . As we said in State v. Hooper,
    We acknowledge that situations such as the one we
    confront in this case, where the record on the post-trial
    A-1513-19
    23
    motion contains all the facts necessary to establish a
    prima facie case of ineffective assistance of counsel,
    are rare. But when circumstances permit, a defendant
    is entitled to the court's prompt review of the claim.
    [
    459 N.J. Super. 157
    , 180–81 (App. Div. 2019) (citing
    Allah, 
    170 N.J. at 285
    ).]
    Nonetheless, because we think it fair defendant and the State have an
    opportunity to address the IAC claim as now framed in this opinion, we remand
    the matter to the trial judge to immediately conduct a hearing regarding trial
    counsel's decisions: 1) to enter into a stipulation that provided the jury with
    evidence of defendant's prior conviction for first-degree kidnapping; and 2) to
    consent to admission of a minimally redacted judgement of conviction that
    included the specific crime.
    Although the court may inquire as to counsel's reasons for making these
    decisions, we have already concluded on this record that those decisions
    demonstrate deficient performance as a matter of law. The judge shall only
    consider whether defendant has met the second prong of the Strickland/Fritz
    standard. We leave the conduct of the hearing, including additional testimony
    if necessary, to the judge's sound discretion. If considering the strengths and
    weaknesses of the State's case the judge concludes by a "reasonable probability"
    that counsel's deficient performance affected the outcome of the trial, Fritz, 105
    A-1513-19
    24
    N.J. at 58, she shall vacate defendant's conviction.     Otherwise, we affirm
    defendant's conviction and sentence.
    Affirmed in part; remanded in part. We do not retain jurisdiction.
    A-1513-19
    25