STATE OF NEW JERSEY v. DARNELL R. HICKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0097-08T40097-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARNELL R. HICKS,

Defendant-Appellant.

______________________________________________________

 

Submitted May 25, 2010 - Decided

Before Judges Skillman and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment

Nos. 04-12-2621-B and 08-01-0021-B.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was indicted together with Naim Robinson for the purposeful or knowing murder of Joseph Burton, in violation of N.J.S.A. 2C:11-3(a)(1), (2); conspiracy to commit second-degree aggravated assault, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b)(1); possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); second-degree aggravated assault upon Khalif Roberts, in violation of N.J.S.A. 2C:12-1(b)(1); fourth-degree aggravated assault by pointing a firearm at Roberts, in violation of N.J.S.A. 2C:12-1(b)(4); fourth-degree aggravated assault by pointing a firearm at Burton, in violation of N.J.S.A. 2C:12-1(b)(4); hindering apprehension, in violation of N.J.S.A. 2C:29-3(a)(3); and tampering with physical evidence, in violation of N.J.S.A. 2C:28-6(1). Defendant was subsequently indicted by another grand jury for possession of a firearm by a convicted felon, in violation of N.J.S.A. 2C:39-7, based on the same incident as the other indictment.

A jury acquitted defendant of Burton's murder and possession of a weapon for an unlawful purpose, but found him guilty of the other offenses charged in the first indictment. Immediately following this verdict, the same jury found defendant guilty of possession of a firearm by a convicted felon under the second indictment.

Defendant filed a motion for judgment notwithstanding the verdict on the ground that the jury verdict was inconsistent, which the trial court denied.

The trial court sentenced defendant to concurrent nine-year terms, with the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for conspiracy to commit second-degree aggravated assault and the second-degree aggravated assault upon Khalif Roberts; a consecutive term of eighteen months for tampering with evidence; and a consecutive nine-year term, with five years of parole ineligibility, for possession of a weapon by a convicted felon. The court also imposed concurrent terms of five years for unlawful possession of a handgun and eighteen months for the two fourth-degree aggravated assaults.

The bulk of the State's case rested on the testimony of Khalif Roberts, who was Burton's companion the night of the murder and the victim of the second-degree aggravated assault; co-defendant Naim Robinson, who testified against defendant pursuant to a plea agreement; and Maurice Patterson, a relative of defendant who was picked up with him in Florida.

Roberts testified that on the night of September 25, 2004, he and Burton gathered with a number of other people drinking and possibly smoking marijuana outside a friend's apartment at the Marina Del Ray apartment complex in Pleasantville. At some point Roberts and Burton left the complex to get more beer, but upon returning they were told their friend had fallen asleep.

After attempting to go to another friend's apartment, they began to walk across a street and noticed defendant and Robinson down the street. Roberts, familiar with the alleged shooters from seeing them at the complex, told Burton, who was looking in the direction of defendants, "[f]uck them, let's go do what we about to do," which was drink on a porch across the street.

Roberts testified that as they crossed the street, "shots just started flying" from the area where defendant and Robinson were standing. Taking cover behind a car, Roberts looked towards the area where the shots were coming from, and saw defendant and Robinson standing there. Roberts, who was in front of Burton, heard Burton "give out, like, an ouch! sound or Ah!" and Burton fell. After the shots stopped, Roberts got off the ground and started to run away. Noticing that Burton was not following him, Roberts returned to the area and found Burton lying in the street "with his eyes up looking at me." Burton died from a single bullet that entered the left side of his torso, which ruptured the spleen, both lungs, and the aorta before resting behind the collar bone.

Robinson testified that defendant lived in an apartment at the Marina Del Ray complex with his uncle, Lonnie Hicks, and Robinson often hung out there with defendant, Lonnie, Burnell Bazemore, and Maurice Patterson, a relative of Robinson. On the night of the shooting, the five friends were at another friend's house drinking and smoking marijuana. During that time, a discussion took place regarding a shooting incident at Lonnie's and defendant's apartment the night before. The group was upset about the incident, and at some point defendant received a phone call from his girlfriend, Alisha Brown, who lived in Marina Del Ray. Defendant said that Brown saw Roberts and "somebody named Mushad" come by his apartment. Defendant indicated that he wanted to go to the apartment complex, so Patterson drove defendant and Robinson there.

At the complex, defendant and Robinson stopped in front of Brown's apartment where they talked with Brown and two of her friends. During the conversation, defendant saw two people walking along a street and said "he's about to cut at them, meaning shoot," and the three girls then ran away. Robinson heard a shot come from a semi-automatic nine millimeter pistol defendant was carrying and proceeded to pull out his .38 revolver and fire it in the direction of the two people, elevating his hand so he would not hit anyone. He estimated he shot three times and defendant shot eight or nine times.

After the shooting, both defendant and Robinson fled the State. Robinson was apprehended in Georgia and gave a statement incriminating defendant.

However, after being returned to New Jersey, Robinson was incarcerated in the Atlantic County Justice Facility, where defendant was also incarcerated. Robinson subsequently received a series of messages threatening him with violence if he testified against defendant. As a result, Robinson wrote two statements disclaiming his earlier assertion that defendant was involved in the shooting.

Robinson was subsequently told by defendant that these statements were insufficient, so he wrote another statement in which he identified another person as the one who participated with him in the shooting. On another occasion, when defendant asked him to change his statement, Robinson refused, and defendant punched him in the jaw. Before defendant's trial, Robinson pled guilty to aggravated manslaughter for his role in the death of Burton and received a sentence of fourteen years imprisonment.

Defendant was apprehended in Florida with his uncle, Lonnie Hicks; Burrell Bazemore; and Maurice Patterson. Patterson gave the police a taped statement recounting incriminiating statements defendant made about his role in the shooting of Burton. Patterson said he received a call early in the morning on September 26, 2004, from defendant asking to pick him up. Defendant said a female caller told him that Burton, Roberts, and another person "knocked on his door in a threatening manner," appearing to have "a metal object on they hip." Defendant went to the Marina Del Ray complex "looking to talk to the guys that threatened him." When he saw them, he fired his gun intending to give warning shots, but someone was hit and died. The next night, defendant convinced Patterson to flee with him, Lonnie, and Burnell, and Patterson drove them to Florida. During the journey, defendant "kept saying I didn't mean it, I didn't mean to shoot him, it was an accident." What occurred when Patterson was called as a witness at trial and this statement was played to the jury is discussed at length later in this opinion.

The defense rested without calling any witnesses.

On appeal, defendant presents the following arguments:

POINT I:

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT PERMITTED A CRUCIAL STATE'S WITNESS TO INITIALLY TESTIFY WITHOUT TAKING THE OATH OR MAKING AN AFFIRMATION (PARTIALLY RAISED BELOW).

POINT II:

THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING THE DEFENDANT'S SECOND TRIAL IN WHICH HE WAS CHARGED WITH POSSESSION OF A WEAPON (A FIREARM) BY A CONVICTED FELON PURSUANT TO N.J.S.A. 2C:39-7 (NOT RAISED BELOW).

POINT III:

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (PARTIALLY RAISED BELOW).

POINT IV:

THE JURY'S VERDICTS FINDING THE DEFENDANT GUILTY OF COUNT II (CONSPIRACY TO COMMIT AGGRAVATED ASSAULT), COUNT V (AGGRAVATED ASSAULT), COUNT VI (AGGRAVATED ASSAULT) AND COUNT VII (AGGRAVATED ASSAULT) WERE INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE.

POINT V:

THE TRIAL COURT ERRED BY FAILING TO EFFECTUATE VARIOUS MERGERS INVOLVING COUNT II ([CONSPIRACY] TO COMMIT SECOND DEGREE AGGRAVATED ASSAULT) INTO COUNT V (SECOND DEGREE AGGRAVATED ASSAULT), COUNTS VI AND VII (FOURTH DEGREE AGGRAVATED ASSAULT) INTO COUNT V ([CONSPIRACY] SECOND DEGREE AGGRAVATED ASSAULT) AND COUNT IV (POSSESSION OF A HANDGUN WITHOUT A PERMIT) INTO COUNT I OF INDICTMENT NO. 08-01-0021-B (POSSESSION OF A WEAPON BY A CONVICTED FELON) (NOT RAISED BELOW).

A. THE TRIAL COURT ERRED BY

FAILING TO MERGE COUNT II

CHARGING CONSPIRACY TO COMMIT

SECOND DEGREE AGGRAVATED ASSAULT

INTO COUNT V CHARGING SECOND

DEGREE AGGRAVATED ASSAULT.

B. THE TRIAL COURT ERRED BY FAILING

TO MERGE COUNTS VI AND VII

CHARGING FOURTH DEGREE AGGRAVATED

ASSAULT INTO COUNT V CHARGING

SECOND DEGREE AGGRAVATED ASSAULT.

C. THE TRIAL COURT ERRED BY FAILING

TO MERGE COUNT IV CHARGING

POSSESSION OF A WEAPON WITHOUT

A PERMIT INTO COUNT I OF INDICT-

MENT NO. 08-01-0021-B CHARGING

POSSESSION OF A WEAPON BY A

CONVICTED FELON.

POINT VI:

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We agree with defendant's argument that the trial court should have merged his conviction for fourth-degree aggravated assault upon Roberts with his conviction for second-degree aggravated assault upon Roberts. However, we reject defendant's other arguments. Therefore, except for the merger of the conviction for fourth-degree aggravated assault upon Roberts, we affirm defendant's conviction and sentence.

I.

Defendant argues that his right to a fair trial was denied because the trial court initially permitted Patterson to testify without taking the oath or affirming to tell the truth, which led to the admission of Patterson's taped statement to the police describing incriminating statements by defendant.

When the prosecutor called Patterson as a witness at trial, he refused to be sworn in or to affirm that his testimony would be the truth. The trial court then had the following colloquy with defendant:

THE COURT: Mr. Patterson, you can either swear or affirm; all we want to know is are you going to tell the truth?

MR. PATTERSON: It is not going to be the truth.

THE COURT: You are going to say something but it won't be the truth?

MR. PATTERSON: Yeah, it is not going to be the truth.

Notwithstanding Patterson's refusal to take the oath or affirm that he would give truthful testimony, the trial court allowed the prosecutor to begin questioning him. Patterson answered "I don't remember" to a number of questions he clearly knew the answer to, such as whether he knew Lonnie Hicks, Burnell Bazemore, and Naim Robinson. He also claimed that the statement he gave police in Florida "was what they wanted [me] to say." Asked if the taped statement would refresh his recollection, he responded, "[t]he tape is false."

During his cross-examination by defendant's counsel, Patterson gave the following testimony:

Q. Sir, when you first came in before this jury, one of the things you said is that something to the effect of that it wasn't going to be the truth; was that in relation to the Florida statement?

A. That was in relation to the statement on tape.

Q. The tape the jury heard?

A. Yes.

When the trial resumed after a three-day weekend, the court informed the parties that it had become aware of State v. Caraballo, 330 N.J. Super. 545 (App. Div. 2000), which held that a trial court committed reversible error by requiring witnesses to testify after they refused to be sworn or make an affirmation to tell the truth and by admitting a prior inconsistent statement made by one of these witnesses.

The court suggested putting Patterson back on the stand to "give him an opportunity to actually go under oath," first outside the presence of the jury and then in front of the jury. The judge indicated he would consider a mistrial if he felt the issue could not be resolved by Patterson swearing or affirming. Defense counsel made clear defendant did not want a mistrial if it would require a new trial.

After the judge informed Patterson he could be held in contempt and placed in county jail for up to six months if he did not swear or affirm, Patterson agreed to swear that he would tell the truth in testimony that day and that he told the truth during his previous testimony. The judge then offered defense counsel the choice of striking Patterson's previous testimony and beginning the testimony anew, including playing his taped statement to the jury again, or accepting the previous testimony and reopening cross-examination. After substantial colloquy with the trial court and conferring with defendant, defense counsel accepted the latter alternative.

In response to questions by defense counsel regarding the statement he gave to the police in Florida, Patterson then gave the following testimony:

Q. Didn't [the investigators] tell you certain facts before you went on the tape about Joe Black's murder? Before you went on the tape?

A. Yes.

Q. And it was based on those facts they told you that when you went onto tape, you just repeated those facts to them, right?

A. Yes.

Q. Maurice, when you were in that interview room, you were scared, right?

A. Yes.

Q. You were scared of a violation of probation where you could have gotten five years in prison where you'd have to serve three years before you could get out, right?

A. Yes.

Q. And they also threatened you with other charges, like harboring a fugitive, right?

A. Yes.

Q. And that is what scared you into giving a statement, wasn't it?

A. Yes.

In Caraballo, supra, 330 N.J. Super. at 555, we held that "[i]f [a] proposed witness refuses to either take an oath or make an affirmation, he should not be allowed to testify." We also held that in the circumstances of that case, the unsworn testimony of recanting witnesses, which enabled the prosecutor to introduce evidence of their out-of-court statements unequivocally identifying defendant as the perpetrator of a murder, constituted reversible error. Ibid. In reaching this conclusion, we emphasized that "[t]he message implicit in the [trial] judge's reminder [to the jury in his instructions] that the witnesses refused to take an oath or make an affirmation was that the out-of-court statements were true and the trial testimony was false." Ibid.

There was no comparable prejudice to defendant in Patterson's initial refusal to be sworn in as a witness. Under threat of contempt, Patterson did subsequently take the oath, and afterwards defense counsel was afforded a full opportunity to question him. Most importantly, the court instructed the jury that the reason for Patterson's initial refusal to be sworn was his claim that his statement to the police in Florida was false rather than his unwillingness to give truthful testimony at trial. Therefore, unlike in Caraballo, the trial court's instructions regarding Patterson's initial refusal to be sworn expressly negated any suggestion that the jury should infer from that refusal "that the out-of-court statements were true and the trial testimony was false. 330 N.J. Super. at 555.

Furthermore, the trial court's handling of Patterson's initial refusal to take the oath or affirm was responsive to defense counsel's requests. The defense expressly declined to move for a mistrial unless that would result in a dismissal of the charges. The court then gave the defense the alternative of either striking Patterson's unsworn testimony and beginning his testimony again or accepting his prior testimony and reopening cross-examination. Defense counsel chose the latter alternative, which the trial court followed. Defense counsel then proceeded to elicit testimony from Patterson that his out-of-court statement had been coerced by the police. Under these circumstances, we are satisfied Patterson's initial testimony without being sworn or affirming did not deprive defendant of a fair trial.

II.

Defendant argues that the trial court failed at his second trial to properly instruct the jury regarding the charge of possession of a handgun by a convicted felon. This argument is based on State v. Ragland, 105 N.J. 189, 195 (1986), which held that when a defendant is tried for possession of a weapon by a convicted felon before the same jury that previously found him guilty of other offenses, "[that] jury [must] be instructed in no uncertain terms to consider anew the evidence previously admitted but to disregard completely its prior verdict." The Court further indicated that "the defendant is entitled to

. . . an instruction that each and every material fact that makes up the crime, including obviously the fact of possession, must be proven by the State beyond a reasonable doubt." Ibid.

In this case, the court instructed the jury:

What our rules require is that you disregard your prior verdict and consider anew, evidence previously submitted on the possession of a weapon.

The defendant is entitled to the presumption of innocence. Each and everybody [sic] material fact that makes up the crime including the element of possession must be proven by the State beyond a reasonable doubt.

Defendant did not object to this instruction.

Although the trial court did not use the precise language of the model jury instruction adopted to implement the Ragland holding, we conclude, especially in the absence of any objection, that the court's instruction to "disregard your prior verdict and consider anew, evidence previously submitted on the possession of a weapon" complied with the requirement of Ragland that "the jury [must] be instructed in no uncertain terms to consider anew the evidence previously admitted but to disregard completely its prior verdict." 105 N.J. at 195.

III.

Defendant argues that he was denied a fair trial by the prosecutor's comments in summation. The argument is clearly without merit and does not warrant extended discussion. R. 2:11-3(e)(2). Most of the prosecutor's alleged objectionable comments were properly based on the evidence and inferences from that evidence and were a fair response to arguments made by defense counsel in his summation. The trial court gave an appropriate curative instruction regarding the prosecutor's suggestion that the defense had an obligation to call Valerie Bazemore and Alisha Brown as witnesses. Although several of the prosecutor's comments may have denigrated defense counsel, there was no objection, and considered in the context of the prosecutor's entire summation, those comments did not "substantially prejudice[] the defendant's fundamental right to have the jury fairly evaluate the merits of his defense." State v. Papasavvas, 163 N.J. 565, 626 (2000) (quoting State v. Timmendequas, 161 N.J. 515, 577 (1999)).

IV.

Defendant argues that his convictions for conspiracy to commit aggravated assault and aggravated assault must be reversed because the jury's findings of guilt with respect to those charges were inconsistent with its acquittal of the murder and possession of a weapon for an unlawful purpose charges.

"Our system of justice has long accepted inconsistent verdicts as beyond the purview of correction by our courts, and therefore a defendant is forbidden from collaterally attacking a guilty verdict on one count with an apparently irreconcilable acquittal on another count." State v. Kelly, ___ N.J. ___, ___ (2010) (slip op. at 20.) "[A] jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted." State v. Banko, 182 N.J. 44, 46 (2004). "[A] reviewing court need only satisfy itself that there is sufficient evidence to support the charge for which the defendant is convicted." State v. Wilder, 193 N.J. 398, 416-17 (2008).

There was clearly sufficient evidence to support defendant's convictions for aggravated assault and conspiracy to commit aggravated assault. A person is guilty of second-degree aggravated assault if he or she "[a]ttempts to cause serious bodily injury to another, or causes such injury purposefully or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." N.J.S.A. 2C:12-1(b)(1). A jury could find beyond a reasonable doubt, based on the testimony of Robinson and Roberts and Patterson's statement, that defendant attempted to cause serious bodily injury to Roberts by shooting at him. This testimony was also sufficient to support the charge of fourth-degree aggravated assault by pointing a firearm at Burton, which requires a finding that defendant "[k]nowingly under circumstances manifesting extreme indifference to the value of human life points a firearm . . . at or in the direction of another." N.J.S.A. 2C:12-1(b)(4). Likewise, a jury could determine based on Robinson's testimony that defendant was guilty of conspiracy to commit aggravated assault by either agreeing with Robinson to shoot at Roberts and Burton or agreeing to aid Robinson in shooting at Roberts and Burton. Therefore, despite the apparent inconsistency between those verdicts and the not guilty verdicts on the homicide and possession of a weapon for an unlawful purpose charges, defendant's convictions for those offenses must be affirmed because "there exists a sufficient evidential basis in the record to support [the guilty verdicts]." Banko, supra, 182 N.J. at 46.

V.

Defendant argues that the trial court erred in failing to merge his conviction for conspiracy to commit second-degree aggravated assault into his conviction for second-degree aggravated assault; failing to merge his convictions for fourth-degree aggravated assault into his conviction for second-degree aggravated assault; and in failing to merge his conviction for possession of a handgun without a permit into his conviction for possession of a firearm by a convicted felon.

N.J.S.A. 2C:1-8(a)(2) provides that a defendant cannot be convicted of more than one offense if "[o]ne offense consists only of a conspiracy or other form of preparation to commit the other." However, "[t]here may be conviction of both a conspiracy and a completed offense committed pursuant to that conspiracy if the prosecution shows that the objective of the conspiracy was the commission of additional offenses." State v. Hardison, 99 N.J. 379, 386-87 (1985) (quoting New Jersey Criminal Law Revision Commission: Commentary 19 (1971)).

The trial court instructed the jury that the conspiracy count of the indictment charged defendant with "conspiracy to commit the crime of aggravated assault upon Khalif Roberts and/or Joseph Burton." The verdict did not indicate whether the jury found that defendant conspired to commit second-degree aggravated assault upon Roberts, Burton, or both of them, and notwithstanding defendant's acquittal of the charge of murdering Burton, the jury could have found that defendant conspired with Robinson to cause serious bodily injury not only to Roberts but also to Burton. However, the jury verdict for the substantive offense of second-degree aggravated assault was based solely on the attempt to cause serious bodily injury to Roberts. Therefore, the conspiracy found by the jury could have had a broader objective than causing serious bodily injury only to Roberts and for this reason defendant's conviction for conspiracy does not merge into his conviction for second-degree aggravated assault upon Roberts.

N.J.S.A. 2C:1-8(a)(1) provides that a defendant cannot be convicted of more than one offense if "[o]ne offense is included in the other." The facts required to prove second-degree aggravated assault by attempting to cause serious bodily injury on Roberts by firing a weapon at him necessarily included the facts required to prove fourth-degree aggravated assault by pointing a firearm at Roberts. As noted in Cannel,

Convictions of more than one type of aggravated assault should merge where there is a single assault. . . . It is clear that the Legislature did not intend conviction and punishment on several assault charges where one attack took place. For merger purposes, where the facts support it, a b(2), b(3) or b(4) assault may be included in a b(1).

[Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:12-1 (2010) (citation omitted).]

Therefore, the trial court erred in failing to merge defendant's conviction for fourth-degree aggravated assault upon Roberts into his conviction for second-degree aggravated assault upon Roberts.

However, there is no basis for merging defendant's conviction for the fourth-degree aggravated assault upon Burton into his conviction for the second-degree aggravated assault upon Roberts because those offenses involved different victims. See State v. Lewis, 223 N.J. Super. 145, 152 (App. Div.), certif. denied, 111 N.J. 584 (1988).

Defendant's argument that his conviction for possession of a handgun without a permit should be merged into his conviction for possession of a firearm by a convicted felon, as a lesser included offense, rests upon his assertion that a convicted felon cannot legally possess a firearm and therefore necessarily could not obtain a permit to possess a handgun. However, each of these offenses requires proof of an element that is not required to prove the other offense. To support a conviction for possession of a handgun without a permit, the State must prove that the defendant did not have a permit to possess the handgun; proof of this fact is not needed to establish the offense of possession of a firearm by a convicted felon. To support a conviction for possession of a firearm by a convicted felon, the State must prove that the defendant has been convicted of one of the offenses listed in N.J.S.A. 2C:39-7(b); proof of this fact is not required to establish the offense of possession of a handgun without a permit. Moreover, these two offenses are directed at different regulatory concerns. N.J.S.A. 2C:39-7 is designed "to deter those previously convicted of serious crimes from possessing dangerous weapons," State v. Brown, 185 N.J. Super. 489, 493 (App. Div.) (quoting State v. Harper, 153 N.J. Super. 86, 89 (App. Div. 1977)), certif. denied, 91 N.J. 265 (1982), while "[t]he gravamen of an offense under N.J.S.A. 2C:39-5(b) is [simply] the failure to have a permit[.]" State v. Cooper, 211 N.J. Super. 1, 22 (App. Div.), certif. denied, 105 N.J. 525 (1986).

Most significantly, while this merger issue has not been directly addressed under the Code of Criminal Justice, this court expressly held that convictions under the predecessors to N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:39-7(b) did not merge:

The two statutory provisions were intended to permit prosecution and punishment for two separate offenses; the proofs necessary for each offense differ; and in no sense can one of them be said to be a lesser included offense of the other.

. . . .

N.J.S.A. 2A:151-41(a) [the predecessor to N.J.S.A. 2C:39-5(b)] and N.J.S.A. 2A:151-8 [the predecessor to N.J.S.A. 2C:39-7(b)] were designed to provide for two distinct possessory crimes in the sensitive area of gun control. In order to deter a person convicted of a crime covered by N.J.S.A. 2A:151-8, who should not be allowed to possess guns at any time or any place, and who in no event may obtain the permit to carry required by N.J.S.A. 2A:151-41(a), the Legislature provided for a separate conviction and enhanced penalty if he is found guilty of possession of any such weapon. He thus may be convicted of, and sentenced for, a violation of not only N.J.S.A. 2A:151-41(a)--possession without a permit--but also N.J.S.A. 2A:151.8.

[State v. Wright, 155 N.J. Super. 549, 554-55 (App. Div. 1978).]

We reach the same conclusion under the Code.

VI.

Finally, defendant argues that his sentence was manifestly excessive.

Appellate review of trial court's sentencing decision is limited to determining whether there was an abuse of discretion. State v. Cassady, 198 N.J. 165, 180 (2009). When considering whether to impose consecutive or concurrent sentences, a trial court is guided by the factors set forth in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), including whether:

(a) the crimes and their objectives were predominately independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous.

[State v. Carey, 168 N.J. 413, 422-23 (2001) (quoting Yarbough, supra, 100 N.J. at 643-44).]

In sentencing defendant, the trial court found no mitigating factors. As for aggravating factors, the court found factor three applied, N.J.S.A. 2C:44-1(a)(3) ("The risk that the defendant will commit another offense"), based on defendant's indictable drug conviction, violation of probation, two pending indictments for charges while in jail, and history of extensive marijuana abuse. The court also found a marginal aggravating factor six, N.J.S.A. 2C:44-1(a)(6) ("The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"), based on defendant's conviction for a serious drug offense and violation of probation, but noting defendant's lack of juvenile record. Finally, the court found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) ("The need for deterring the defendant and others from violating the law"), based on the serious nature of his convictions involving shooting a firearm at another person.

In deciding to sentence defendant to a consecutive sentence on the tampering with evidence conviction, the court noted that defendant's actions in concealing his involvement in the shooting, especially his attempts to convince Robinson to recant his statement, represented "a separate evil" from the convictions related to the shooting itself. Similarly, the court imposed a consecutive sentence on the possession of a weapon by a convicted person conviction because "there is no question but that's a separate evil."

We conclude that the trial court properly identified the applicable aggravating sentencing factors and absence of mitigating factors. We also conclude that those aggravating factors warranted sentences above the mid-point of the sentencing range for the offenses of which defendant was convicted.

Finally, we find no abuse of discretion in the court's decision to impose consecutive sentences for defendant's convictions for possession of a firearm by a convicted felon and tampering with evidence. The crime of possession of a firearm by a convicted person relates to a person's status and possession of a weapon, which necessarily preceded his actions the night of the shooting, and supports the trial court's conclusion that such possession is "a separate evil." The tampering with evidence conviction is based on defendant's actions separate in time and place from the offenses related to the shootings. The assault offenses and tampering offense also had independent objectives--the assault offenses had the objective of harming another person while the tampering offense had the objective of hindering the State from prosecuting defendant.

Accordingly, we remand the case to the trial court for entry of an amended judgment of conviction under which defendant's conviction for fourth-degree aggravated assault upon Roberts is merged into his conviction for second-degree aggravated assault upon Roberts. The judgment of conviction is affirmed in all other respects.

 

(continued)

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A-0097-08T4

August 12, 2010