STATE OF NEW JERSEY v. JOSEPH J. REHKAMP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5260-03T45260-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH J. REHKAMP,

Defendant-Appellant.

______________________________________

 

Submitted March 1, 2006 - Decided April 13, 2006

Before Judges Parker, C.S. Fisher and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Warren County,

Indictment No. 99-08-0307.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, of counsel and on

the brief).

Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent (Tara

J. Kirkendall, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Joseph Rehkamp appeals from a final judgment of conviction and sentence. We affirm the multiple convictions but remand for merger and reconsideration of defendant's sentence in accordance with State v. Natale, 184 N.J. 458 (2005).

Indicted and tried to a jury, defendant was convicted of the following: recklessly causing significant bodily injury to Nicole Timbrook under circumstances manifesting extreme indifference to human life, a crime of the third degree, N.J.S.A. 2C:12-1(b)(7) (a lesser included offense of N.J.S.A. 2C:12-1b(1)(Count I)); attempting to cause bodily injury to Larry Commisso with a deadly weapon, a crime of the third degree, N.J.S.A. 2C:12-1b(2) (a lesser included offense of N.J.S.A. 2C:12-1b(1) (Count III)); possession of a deadly weapon with the purpose of using it unlawfully against the person of Larry Commisso, a crime of the third degree, N.J.S.A. 2C:39-4d (Count IV); burglary while armed, a crime of the second degree, N.J.S.A. 2C:18-2 (Count V); and terroristic threats, a crime of the third degree, N.J.S.A. 2C:12-3b. Following trial, defendant, who had been convicted of robbery in 1991, pled guilty to the fourth-degree crime of possession of a knife, N.J.S.A. 2C:39-7b, which was charged in a separate indictment.

The judge sentenced defendant to a nine-year term of imprisonment for burglary, eighty-five percent of which must be served without possibility of parole pursuant to the No Early Release Act (NERA). N.J.S.A. 2C:43-7.2 (as adopted by L. 1997, c. 117, 2). This sentence is also subject to a five-year term of parole supervision as required by NERA. In addition, the judge imposed a five-year term for each crime of the third degree and a term of eighteen months for the fourth-degree weapons offense. Those terms are concurrent with one another and with the sentence imposed for burglary. The judge also sentenced defendant to pay a $700 VCCB assessment, a $300 SNSF assessment, a $30 LEOTEF penalty and restitution in the amount of $5,000. This appeal followed.

The charges against defendant were based on the events of June 21, 1999. Timbrook and defendant had known one another for about fourteen years and had dated on and off through those years. Although Timbrook ended their relationship in June of 1998, she continued to see defendant on an occasional basis. During the week prior to June 21, 1999, she returned to her home and found numerous messages from defendant on her answering service. Each of the messages was more threatening than the one preceding it; in the last message, defendant warned Timbrook that he knew she was seeing someone else and would kill them if he saw them together. Defendant was correct about Timbrook's having a new relationship: she had been seeing Larry Commisso for about three weeks.

On the morning of June 21, 1999, Timbrook and Commisso were resting in the bedroom of her apartment in her parents' home. They had been up all night talking. At approximately eight a.m., her phone rang. She looked at her Caller I.D., saw the phone number of defendant's construction company and declined to answer. Shortly thereafter, defendant arrived at the front door. She saw him on the porch. When she ignored his banging at the door, he came to her bedroom window and pounded on it. Getting no response, defendant left. Timbrook checked the locks on the doors and went back to sleep. She did not call the police.

Within an hour, Timbrook and Commisso were awakened by a bang and a crash. Defendant came through the door to Timbrook's apartment from the main house. He looked surprised, shouted his intention to kill Commisso and pinned him to the bed. The men struggled. From his position on top of Commisso, defendant tried to choke him. Timbrook tried to help Commisso, and defendant bit her. He pulled a knife, a Leathermen's tool, and raised it above his head as if preparing to bring it down on Commisso's neck.

Timbrook grabbed for defendant's wrist. Instead, she grasped the blade of the knife. When defendant jerked the knife away, she was left cut and bleeding.

She left the fray to tend to her wound, and the men continued their struggle. Defendant managed to hold the knife against Commisso's neck, at which point Commisso stopped resisting and defendant repeated his threat to kill him.

Timbrook called from the kitchen for defendant's help. He responded. When Commisso disobeyed defendant's instruction to stay put and went to the kitchen, defendant lunged at him with the knife and pushed him back into the bedroom.

Timbrook tried to call 9-1-1, but defendant pulled the phone from the wall. When she tried a cordless phone, defendant ripped its base from the wall as well. Defendant left the home; as he did he told Commisso that if he did not get him he would have someone else do it. Timbrook used her parents' phone to call the police.

The officers found physical evidence of forced entry. The door to Timbrook's apartment was broken; its handle had been pushed in. In addition, the screen on the back door of the house was hanging down.

Timbrook and Commisso were taken to the hospital. She was treated for cuts to the digital flexor tendons of her index and middle fingers, the main artery of her index finger, a lacerated muscle and a chipped bone or cartilage. Despite emergency surgery, she was unable to use her hand for three months; nine months later, she still had not gained full use of her hand. Commisso received five to six sutures for a cut on his neck, which was not serious but left a scar.

Following his arrest, defendant told the police where to find the knife. He explained that he went to Timbrook's house and saw a "strange" car in the street and blankets covering her windows. He "suspected something." He left, but then decided to go back. He parked on a different street, walked into Timbrook's backyard and through an open back door into the home. He admitted to pushing open the locked door to her bedroom. According to defendant, he "lost it" when he saw Commisso in Timbrook's bed. He denied having any intention to hurt anyone when he entered the apartment but acknowledged threatening to kill Commisso.

At trial, defense counsel questioned Timbrook about her failure to seek a restraining order after this incident. Defense counsel also asked Commisso if Timbrook had called the police when defendant was pounding on her door and window.

In rebuttal, Timbrook testified that she did not sign an application for a restraining order after this incident. She explained: "Because in the past [defendant] had threatened me on numerous occasions that if I ever threatened his freedom that he specifically would do harm to me before the police would be able to get there."

Defendant raises nine issues on appeal. He argues:

I. THE TRIAL COURT ERRED BY FAILING TO ISSUE A LIMITING INSTRUCTION TO THE JURY REGARDING THE EVIDENCE ADMITTED AT TRIAL PURSUANT TO N.J.R.E. 404(B). (NOT RAISED BELOW)

II. THE PROSECUTOR'S UNEXPECTED YET PRE-PLANNED DEMONSTRATION DURING HIS SUMMATION WAS IMPROPER, DENYING TO DEFENDANT HIS RIGHT TO A FAIR TRIAL.

III. THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT RIGHT TO REMAIN SILENT. (NOT RAISED BELOW)

IV. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A STATE'S WITNESS INDICATING THAT DEFENDANT WAS INCARCERATED FOLLOWING THE INCIDENT IN QUESTION. (PARTIALLY RAISED BELOW)

V. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR JUDGMENT OF ACQUITTAL REGARDING COUNT V CHARGING BURGLARY.

VI. THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY.

VII. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IV INVOLVING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT III INVOLVING AGGRAVATED ASSAULT BY ATTEMPTING TO CAUSE BODILY INJURY WITH A DEADLY WEAPON. (NOT RAISED BELOW)

VIII. THE SENTENCE IMPOSED WAS MANIFESTLY

EXCESSIVE.

IX. ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.

I.

The trial errors raised in Points II, III, IV, V and VI lack sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(2). We provide only a brief explanation for that conclusion on each point.

Defendant asserts that the prosecutor exceeded the bounds of proper argument when he conducted a demonstration during summation. Although the demonstration was improper, we conclude that the trial judge's curative instruction was sufficient to eliminate any potential prejudice. For that reason, we reject the argument raised in Point II of defendant's brief.

During summation the prosecutor held the knife that defendant used in these assaults and told the jurors that he was squeezing it "very, very hard," as "hard as he could." He then showed the jurors his hand and remarked, "not a scratch, not even a mark." He argued that the knife "had to have been pulled, had to have" to cause the type of injuries Timbrook sustained. He gave a similar performance in arguing that defendant could not have caused Commisso's injury by simply holding the knife against his neck, pressing the knife against his own throat with sufficient force to change the sound of his voice. He then displayed his neck, which was not cut. On the basis of that demonstration, the prosecutor argued that defendant must have moved the knife across Commisso's neck in order to cut him.

Demonstrations of this sort, if permitted at all, should be performed during the presentation of the evidence and not during closing argument. See State v. LiButti, 146 N.J. Super. 565, 572-73 (App. Div. 1977). Nonetheless, the judge clearly and firmly directed the jurors to disregard the performances. He explained that the prosecutor could not state an opinion on the sharpness of the knife and directed them to decide the case on the evidence, emphasizing that the prosecutor's demonstration was not evidence and that the knife itself was in evidence. He concluded: "I'm telling you to disregard what he did in your presence with respect to the knife. So you can't consider that."

In the absence of evidence to the contrary, this court presumes that jurors heed a judge's curative instructions. See State v. Manley, 54 N.J. 259, 271 (1969). There is no basis for concluding that the jurors disregarded the judge's emphatic direction. The jurors reached a verdict supported by the evidence. They found that defendant caused Timbrook's injuries recklessly (rather than purposely or knowingly) and attempted to cause bodily injury (not serious or significant bodily injury) to Commisso. The prosecutor's demonstration did not prejudice defendant, who was acquitted of more serious assault offenses.

In Point III of his brief, defendant raises an additional objection to the prosecutor's argument, one which he did not raise below. He contends that the prosecutor's use of rhetorical questions during summation amounted to comment on his exercise of his right against self-incrimination. The record does not support that claim.

The prosecutor's questions did not suggest that defendant should have supplied answers. In form and content, the questions invited the jurors to consider inferences available from the evidence: "Why would you kick in that door if your purpose was to walk in there [to talk to Timbrook?]"; "Did he have an intent to commit a crime therein?"; "What stopped him in the process of cutting [Commisso] . . . ?"; "How concerned is a man who rips the phone out of the wall when she's just trying to get help to stop from bleeding to death?"; "Why did he bite her? That's for you to consider."

The absence of an objection at the time indicates that in the context of the trial the defense viewed the prosecutor's argument as proper and not prejudicial. State v. Darrian, 255 N.J. Super. 435, 457-58 (App. Div.), certif. denied, 130 N.J. 13 (1992); see State v. Wilson, 57 N.J. 39, 51 (1970). Our review of the record leads us to the same conclusion. Fairly read, the summation must be viewed as argument based on the evidence and not comment on defendant's silence.

In response to a question from defense counsel, Commisso admitted that on the day following the assault he told an investigating detective that he took defendant's parting threat to kill as an "idle" one. Commisso explained that when the detective asked him that question defendant was in jail, and he "felt pretty confident."

In Point IV of his brief, defendant argues that Commisso's testimony deprived him of a fair trial. Commisso's brief and responsive reference to defendant's confinement on the day after these serious crimes was not capable of creating the impression that defendant was confined for a different crime or because of a determination that he was either dangerous or likely to commit another offense. See N.J.R.E. 404(b). Defendant's reliance on State v. Reddish, 181 N.J. 553, 610-12 (2004), which raised that issue, is misplaced. Here, the only reasonable inference was that defendant had been arrested on the day of the crime and not yet released on bail.

The evidence of defendant's guilt was overwhelming and more than adequate to permit a jury to find each element of every crime, including burglary, beyond a reasonable doubt. State v. Brown, 80 N.J. 587, 591 (1979); State v. Reyes, 50 N.J. 454, 459 (1967). See also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979). For that reason, the argument raised in Point V of defendant's brief lacks merit.

Defendant claims that there was insufficient evidence to support a finding that he entered Timbrook's apartment with the purpose of committing assault. The purpose to commit a crime within the structure entered is an element of burglary. N.J.S.A. 2C:18-2a(2). In order to establish that element the State was required to prove that defendant broke into Timbrook's apartment with the "conscious object" of committing an assault. See ibid.; N.J.S.A. 2C:2-2b(1). He argues that because there was no evidence that he knew Timbrook was entertaining Commisso, there was no basis for a finding that his objective was assault when he broke through the door.

In assessing the adequacy of the evidence we must consider the State's proofs in the most favorable light and with the benefit of all reasonable inferences that support the verdict. Reyes, supra, 50 N.J. at 459. The evidence in this case amply supports a finding that defendant had the purpose required for conviction of burglary. After threatening to harm Timbrook and anyone she was dating, defendant placed an early morning phone call to Timbrook, which she did not answer. He followed up by visiting her home, where he noticed a "strange" car in the street. He pounded on the door and then her bedroom window. He was suspicious. He left the premises but later returned and forcibly entered her room. Once inside, he did what he had threatened to do -- attacked and injured Timbrook's companion.

From that evidence, a reasonable juror could infer that defendant set out to confirm his suspicion that Timbrook was seeing someone else and entered her apartment with the purpose of assaulting anyone he found with her. The "conscious object" required to satisfy the element of purpose in burglary "include[s] a conditional conscious object." II Final Report of the New Jersey Criminal Law Revision Commission, The New Jersey Penal Code: Commentary 2C:2-2 at 41 (1971) (emphasis added); see N.J.S.A. 2C:2-2b(1); State v. Warren, 173 N.J. Super. 528, 530 (Resent. Panel 1980) (evidence gave rise to the inference of burglar's intention to take whatever property was available in the building). A look of surprise upon confirmation of suspicion does not preclude a finding of intention to act upon confirmation. Accordingly, we reject the argument raised in Point V of defendant's brief.

We also conclude that the trial judge did not abuse his discretion in ruling that if defendant elected to testify the State would be permitted to introduce limited evidence of the prior convictions -- i.e., the dates and sentences imposed. State v. Spivey, 179 N.J. 229, 242-43 (2004). "Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Id. at 243 (quotations and citations omitted). A defendant who seeks to testify and avoid disclosure of prior convictions relevant to credibility must demonstrate a lack of probative value on the issue, either due to the nature of the prior crime or "[t]he lapse in time between his prior convictions and his current crime." Ibid.

In 1991, as a consequence of his conviction for robbery, theft and possession of a weapon for an unlawful purpose, defendant was sentenced to a term of fifteen years, five to be served without possibility of parole. He had several prior convictions and was serving a term of probation when he committed the 1991 crimes. He was not released from prison until 1996, and he committed the crimes at issue here in 1999.

The judge applied the controlling legal standards. See State v. Sands, 76 N.J. 127, 147 (1978). After considering the number of convictions, the nature of the crimes and periods of incarceration, the judge concluded that they were not too remote to have probative value. See ibid. There was no abuse of discretion. Spivey, supra, 179 N.J. at 242-43. II.

Defendant argues that the judge erred in failing to instruct the jurors on the limited relevance of Timbrook's testimony about his threatening phone messages and warnings. Although we agree that it would have been appropriate to give an instruction explaining the permissible and impermissible uses for this evidence, defendant did not request the charge, and, without reasonable doubt, any error was incapable of leading the jury to a result it would not have reached if a limiting instruction had been given. State v. Hernandez, 170 N.J. 106, 132 (2001); State v. G.S., 145 N.J. 460, 473 (1996).

Generally, testimony about prior threats made by the defendant is admitted for a limited purpose, and, for that reason, the judge is required to explain to the jurors how they may and may not use that testimony. State v. Engel, 249 N.J. Super. 336, 373-74 (App. Div.) (discussing admissibility of recent threats relevant to motive and intent and appropriate limiting instructions), certif. denied, 130 N.J. 393 (1991); see N.J.R.E. 105; N.J.R.E. 404; Hernandez, supra, 170 N.J. at 131-32; State v. Stevens, 115 N.J. 289, 304 (1989); State v. Jenkins, 356 N.J. Super. 413, 430-31 (App. Div. 2003), aff'd, 178 N.J. 347 (2004). The necessary instruction distinguishes uses that are permitted and prohibited by N.J.R.E. 404. Evidence of threats on a prior occasion is "evidence of other crimes, wrongs or acts," which may not be admitted to prove that a person has a "disposition" to engage in the conduct and acted "in conformity" with that disposition. N.J.R.E. 404(b) (emphasis added). Prior threats may be admitted, however, to prove motive, intent, plan and the like. Ibid.; State v. Nance, 148 N.J. 376, 386-87 (1997) (explaining that the list of permissible uses included in N.J.R.E. 404(b) is illustrative not exhaustive).

By its terms, N.J.R.E. 404(b) applies to "other crimes, wrongs or acts" not those related to the events at issue in the trial. State v. Martini, 131 N.J. 176, 241 (1993) (noting that Rule 55 (now N.J.R.E. 404(b)) "is only a consideration with respect to conduct that occurred on other occasions"), cert. denied, 516 U.S 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995). Our courts have held that N.J.R.E. 404 "does not apply to uncharged acts of misconduct that are components of the crime that is the subject of the trial" or part of the total criminal episode. State v. Long, 173 N.J. 138, 161 (2002) (quoting Martini, supra, 131 N.J. at 241); State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). Often referring to such evidence as "res gestae," our cases have held that N.J.R.E. 404(b) does not apply to wrongful conduct that "take[s] place during the same time frame as the crime charged," "establishes the context of the criminal event," or "presents the full picture of the crime to the jury." Cherry, supra, 289 N.J. Super. at 598-99; see Martini, supra, 131 N.J. at 241 (threats); State v. Byard, 328 N.J. Super. 106, 113-14 (App. Div.), certif. denied, 165 N.J. 490 (2000). In such a case, analysis of probative value and unwarranted prejudice pursuant to N.J.R.E. 403 is required, as it is in the case of N.J.R.E. 404(b) evidence. See Long, supra, 148 N.J. at 161-62.

The distinction between evidence exempt from and subject to N.J.R.E. 404(b) is not always apparent. In State v. Nance, the Court applied N.J.R.E. 404(b) in addressing evidence offered to show jealous reactions over a seven-month period prior to the crime as relevant to motive and state of mind in a prosecution for homicide. 148 N.J. at 380-83. In State v. Long, evidence that the defendant in a murder trial told her friend about the manner in which her mother died days before the mother's fatal accident was admissible as relevant to her motive for killing her friend shortly thereafter and not subject to N.J.R.E. 404(b). 173 N.J. at 157-58.

At least with respect to limiting instructions, however, the distinction between "res gestae" evidence relevant to motive and intent and evidence "of other wrongs" no longer has great significance in a case where the evidence has the capacity to permit an inference that a defendant in a criminal proceeding is a "bad person" and acted accordingly. This court and the Supreme Court have held that when evidence is admitted as both "res gestae and motive evidence . . . an appropriate instruction limiting the use of the motive evidence should [be] given" when there is a potential that it could be used to infer guilt based on evidence indicating that the defendant is a "bad person." Jenkins, supra, 356 N.J. Super. at 431; see Jenkins, supra, 178 N.J. at 365 (agreeing that the trial judge erred by not providing adequate limiting instructions and finding additional error). And, the Supreme Court directed delivery of a limiting instruction, "[n]otwithstanding the fact that generally no limiting instruction is necessary insofar as res gestae evidence is concerned," in a "case involv[ing] both the res gestae and the excited utterance exceptions to the hearsay rule" and a potential for improper use of the motive evidence to infer violent propensity. Long, supra, 173 N.J. at 165.

In this case, the threatening phone messages defendant left less than a week before this incident were admissible pursuant to N.J.R.E. 404(b) to establish his state of mind, motive and intention and, because made within a time proximate to the incidents at issue, also admissible to establish the context of this criminal event. See Jenkins, supra, 356 N.J. Super. at 431. Thus, under Jenkins, the trial judge should have given an instruction that did the following: 1) cautioned the jurors that the messages were not admissible to show that defendant had a threatening disposition and acted in accordance with it on the day in question; and, 2) directed them to consider the messages only for the purpose of determining defendant's intention, plan and motive during the course of this episode. With respect to the phone messages, the instruction was called for because defendant was charged with a similar crime, specifically making a terroristic threat against Commisso, and it was possible that the jurors, without guidance, would infer that defendant had a "disposition" to threaten and acted in conformity with it when addressing Commisso.

Timbrook's explanation for not calling the police or signing a restraining order also disclosed prior threats made by defendant. She explained that in the past defendant had told her that he would harm her if she did anything to interfere with his "freedom." Here, however, there was no evidence that these threats were part of this criminal episode within the meaning of Long. The testimony was admissible for a limited purpose, because it was relevant to an issue defense counsel put in dispute by questioning Timbrook's failure to call the police when defendant came to her door and window and apply for a restraining order after this incident. See State v. Vandeweaghe, 177 N.J. 229, 237 (2003); State v. James, 144 N.J. 538, 553-54 (1996). But, the principles that allow the prosecution to place evidence miscast by the defense in its proper context do not permit introduction of unnecessarily prejudicial evidence. See James, supra, 144 N.J. at 554. Accordingly, because N.J.R.E. 404(b) was implicated, a limiting instruction should have been given.

Because defendant did not raise the issue, we consider the potential impact of the omission on the verdict in light of the strength of the State's evidence, the issues in dispute at trial and the nature of the unfair prejudice. See, e.g., G.S., supra, 145 N.J. at 473; State v. Cusick, 219 N.J. Super. 452, 467 (App. Div) (evidence of guilt), certif. denied, 109 N.J. 54 (1987); State v. Hummel, 132 N.J. Super. 412, 425-26 (App. Div.) (discussing failure to give limiting instruction in light of "ample evidence of defendant's guilt" and fact that evidence was "intertwined in time, place and circumstance with the charges"), certif. denied, 67 N.J. 102 (1975).

The messages defendant left, which threatened harm to Timbrook and anyone she was dating, had little significance beyond its permissible uses -- motive and state of mind. By its nature, testimony about the defendant's prior unexecuted threat to harm Timbrook and any new companion she might have did not give rise to an inference that he had a propensity for acts like burglary, assault and possession of a weapon. See Nance, supra, 148 N.J. at 392. The direct eyewitness testimony and physical evidence of defendant's conduct and the harm he caused on the day in question was overwhelming and the only real dispute was about his state of mind. Because defendant's prior threats were admissible on the only issue that was in real dispute, we fail to see how a limiting instruction could have had any impact on the verdict with respect to the assault, weapons and burglary charges. On these charges, a proper instruction would have served to highlight the relevance of defendant's threatening messages to the only disputed issue in this case -- his state of mind at the time of the conduct and harm. The benefit would have inured to the State not defendant.

We also conclude that the omission of a limiting instruction relevant to terroristic threats does not amount to plain error. The question is closer with respect to that charge because of the potential for use of evidence of prior threats as evidence of a propensity to commit a crime charged, terroristic threats. Nonetheless, because of the strength of the State's proofs of that crime, which included defendant's admission that he told Commisso he was going to kill him and both victims' testimony to that effect, we are convinced that the outcome would have been the same if the instruction had been given.

The judge's omission of a limiting instruction on permissible use of Timbrook's testimony about defendant's threat to harm her if she ever "threatened his freedom" was also harmless error. The testimony was brief, non-specific and introduced because defense counsel injected the issue. See State v. Brown, 138 N.J. 481, 531-32 (1994). Because of the overwhelming evidence, we have no reasonable doubt that these verdicts were based on what defendant did and said on the day in question and not on assumptions about his propensities. In the face of this evidence, there was no need for the jurors to turn to defendant's dispositions or inclinations to conclude that he was guilty.

III.

The remaining issues concern the sentence imposed. The State acknowledges that defendant's conviction for possession of a weapon with the purpose of using it unlawfully must be merged with his conviction for aggravated assault by attempting to cause bodily injury with a deadly weapon. See State v. Hill, 182 N.J. 532, 542, 546 (2005); State v. Lado, 275 N.J. Super. 140, 157-58 (App. Div.), certif. denied, 138 N.J. 271 (1994). This jury verdict did not establish a basis for separate convictions. There was no finding that defendant had an unlawful purpose for possessing the knife beyond his purpose to use it unlawfully against Commisso. Lado, supra, 275 N.J. Super. at 158. Accordingly, we remand so that the judge may merge the convictions, correct the judgment and eliminate any fines and penalties imposed as a consequence of the merged weapons offense.

Defendant's nine-year sentence for the second-degree crime of burglary with concurrent terms for multiple crimes involving two victims is not manifestly excessive. Defendant acknowledged his obligation to serve eighty-five percent of his sentence for burglary without possibility of parole based on his use of a deadly weapon during the commission of the burglary. N.J.S.A. 2C:43-7.2. The judge considered the parole ineligibility term in setting the duration of defendant's sentence. Cf. State v. Marinez, 370 N.J. Super. 49, 58-59 (App. Div.), certif. denied, 182 N.J. 142 (2004). Further, the judge applied properly all of the relevant standards and guidelines of the Code, and the sentence is based upon aggravating and mitigating factors that are supported by the record and articulated. See State v. Hodge, 95 N.J. 369, 376 (1984); State v. Roth, 95 N.J. 334, 363 (1984); State v. Johnson, 203 N.J. Super. 127, 137 (App. Div.), certif. denied, 102 N.J. 312 (1985).

Although it appears that the aggravating factors found by the judge were based solely on the defendant's criminal history and not on other facts not established by the jury's verdict, the judge did not expressly state that he was relying solely on defendant's criminal history when he considered the need for deterrence. For that reason and because a remand is required, we direct the judge to reconsider the sentence in accordance with Natale, supra, 184 N.J. at 495-96.

 

Count II, which charged possession of a knife with the purpose of using it unlawfully against Timbrook, was dismissed at the close of the State's case.

(continued)

(continued)

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