STATE OF NEW JERSEY v. CHRISTOPHER B. FOUNTAIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1743-08T41743-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER B. FOUNTAIN A/K/A

BUCK FOUNTAIN, CHRIS FOUNTAIN,

CHARLES M. SPIVEY,

Defendant-Appellant.

____________________________

 

Submitted December 8, 2009 - Decided

Before Judges Skillman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-07-1649.

Yvonne Smith Segars, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On July 17, 2007, an Atlantic County Grand Jury charged defendant Christopher Fountain with third-degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count four); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count five). A jury convicted defendant of all charges.

On July 3, 2008, the trial court granted the State's motion to sentence defendant to a discretionary extended term, pursuant to N.J.S.A. 2C:44-3a. After finding aggravating sentencing factors, N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating sentencing factors, N.J.S.A. 2C:44-1b, the court sentenced defendant on count three to a seventeen-year extended term of imprisonment with a 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a three-year period of parole supervision upon release. On count one, the court sentenced defendant to a five-year term of imprisonment, to run consecutive to the sentence imposed on count three. On count five, the court sentenced defendant to an eighteen-month term of imprisonment, with an eighteen-month period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c, concurrent with the sentences imposed on counts one and three. The court merged counts two and four with count three and imposed all appropriate fines and penalties.

On appeal, defendant argues:

POINT I.

THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY, AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (NOT RAISED BELOW).

POINT II.

THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHEN IT VOUCHED FOR THE KEY WITNESS'S CREDIBILITY, AND USURPED THE ROLE OF THE JUDGE BY "EXPLAINING" THE ELEMENTS OF THE PRIMARY CRIME CHARGED, DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST., ART. 1, PAR. 10. (NOT RAISED BELOW).

POINT III.

EXPERT BALLISTICS TESTIMONY FINDING THAT THE RECOVERED BULLET RESULTED IN A CONCLUSIVE POSITIVE IDENTIFICATION FAILED TO CONFORM TO SCIENTIFIC STANDARDS, DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT IV.

THE TWENTY-TWO [] YEAR AGGREGATE PRISON TERM, SEVENTEEN YEARS OF WHICH ARE SUBJECT TO THE NO NEARLY RELEASE ACT, IS MANIFESTLY EXCESSIVE AND REQUIRES A REMAND UNDER STATE V. PIERCE.[] MOREOVER, THE FOURTH-DEGREE AGGRAVATED ASSAULT SHOULD HAVE MERGED WITH [THE] SECOND-DEGREE AGGRAVATED ASSAULT.

A. THE TWENTY-TWO YEAR AGGREGATE PRISON TERM IS EXCESSIVE.

B. [DEFENDANT] IS ENTITLED TO A REMAND UNDER STATE V. PIERCE.

C. FOURTH-DEGREE AGGRAVATED ASSAULT SHOULD HAVE MERGED WITH SECOND-DEGREE AGGRAVATED ASSAULT.

We affirm, except we vacate the conviction and sentence imposed on count five, and remand to enter a corrected judgment of conviction.

On April 6, 2007, defendant was a patron of the DeJa Vu Nightclub in Atlantic City. Among others present were Devaughn Coleman, Ever Cardoza, Michael Capua and Robert Giblert, four of the nightclub's security personnel; William Sanchez, the nightclub's manager; and Bea Harris, another patron. At approximately 3:30 a.m. defendant engaged in an argument with Coleman, after which defendant pulled a handgun from his waistband and shot Coleman. Immediately following the incident, defendant walked toward Harris and motioned for her to take the gun. Upon realizing that the object being handed to her was a gun, Harris refused.

At that time, Sanchez observed defendant with the gun and knocked it out of his hand. Sanchez then placed his foot on the gun to secure it, while directing Capua to pick the gun up off the floor. After the security personnel seized defendant, Capua handed the gun to Giblert who had been working the front door entrance of the nightclub. Giblert, in turn, handed the weapon to Franco Sydnor, an off-duty Atlantic City Police Officer, who had been walking along the sidewalk near the nightclub. Sydnor placed defendant in custody and handed the weapon to Sergeant Joseph Falcone who responded to the scene.

We have considered defendant's arguments in Points I, II and III of his brief in light of the record and applicable law. We conclude that the arguments are without merit. R. 2:11-3(e)(2). Nevertheless, we add the following comment.

Defendant raises those arguments for the first time on appeal. Accordingly, we review them under the plain error standard of review. R. 2:10-2. Under that standard, "[w]e will disregard '[a]ny error or omission [by the trial court] . . . unless it is of such a nature as to have been clearly capable of producing an unjust result.'" State v. Castagna, 187 N.J. 293, 312 (2006) (quoting R. 2:10-2). To reverse for plain error, a reviewing court must determine that there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Here, we discern no error, much less plain error.

We now turn to defendant's arguments under Point IV concerning his sentences. Defendant first contends that the seventeen-year extended-term sentence imposed on count three and the consecutive five-year sentence imposed on count one "are manifestly excessive and unduly punitive, mandating reduction." We disagree. The sentences imposed by the court were well within its statutory authority and did not constitute an abuse of discretion. State v. Cassidy, 198 N.J. 165, 180-81 (2009). However, defendant's contention that the trial court erred by failing to merge his conviction of fourth-degree aggravated assault on count five with his conviction of second-degree aggravated assault on count three has merit.

"The purpose of merger is to avoid double punishment for a single wrongdoing." State v. Diaz, 144 N.J. 628, 637 (1996). "[M]erger issues implicate a defendant's substantive state constitutional rights that are rooted in principles of double jeopardy, due process or some other legal tenet." Ibid. Under the New Jersey Code of Criminal Justice, a defendant may be prosecuted for more than one offense "[w]hen the same conduct of [the] defendant may establish the commission of more than one offense." N.J.S.A. 2C:1-8a. However, the defendant may not "be convicted of more than one offense, if [o]ne offense is included in the other." N.J.S.A. 2C:1-8a(1). An offense is considered included in another offense when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8d(1).

Here, the State agrees with defendant's contention that for sentencing purposes his conviction of fourth-degree aggravated assault on count five should have merged with his conviction of second-degree aggravated assault on count three. We concur.

 
We affirm, except as to the merger of the conviction on count five with the conviction on count three. We vacate the judgment of conviction and sentence imposed on count five, and remand to enter a corrected judgment of conviction accordingly.

State v. Pierce, 188 N.J. 155 (2006).

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A-1743-08T4

April 19, 2010