STATE OF NEW JERSEY v. WILLIAM CORSEY, IV

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5229-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM CORSEY, IV,

Defendant-Appellant.

________________________________________________________________

November 8, 2010

 

Submitted September 14, 2010 - Decided

 

Before Judges Parrillo, Yannotti and Espinosa.

 

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 01-09-0669.

 

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

 

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

 

PER CURIAM

Defendant appeals from his sentence and convictions for passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2), and possession of a weapon under circumstances not manifestly appropriate for lawful uses, N.J.S.A. 2C:39-5(d). We affirm the conviction, reverse the sentence and remand for re-sentencing.

The charges arise from the fatal stabbing of Christopher Bensinger during an altercation at a party in Woodbury on October 20, 2000. Defendant was convicted of first-degree murder and weapons offenses in a prior trial. That conviction was reversed in an unpublished opinion filed in 2006. The evidence at the retrial can be summarized as follows:

At the time of the stabbing, defendant was a sixteen-year-old student at Deptford High School. Bensinger's girlfriend, K.P., had alleged that defendant's father, her track coach at Deptford High School, sexually molested her. Defendant's father was indicted in late September 2000.

Several weeks prior to this party, defendant told a friend, Alexis Aquino, that K.P. was a "slut" and threatened her brothers. Aquino told K.P.'s brothers about this conversation; they told K.P., and she in turn told Bensinger that defendant said "he was going to get me and my whole family."

Bensinger arrived at the party at approximately 9:15 p.m. with two friends. His best friend, Joseph Kircher, testified that, almost immediately, Bensinger approached a group that included defendant. Kircher said that Bensinger and defendant were "having words . . . they weren't really getting along." Although people tried to dissuade them from fighting, they were soon in the middle of a circle, fighting. Another friend of Bensinger's, Matthew Fair, testified that the fight began when Bensinger threw a punch at defendant over Fair's shoulder. Kircher described the fight in this way. "[T]hey riled each other up and they went at each other at the same time, like two rams butting heads, swinging and punching."

No one saw defendant using any weapon during the fight but defendant was observed hitting Bensinger in the chest. According to Fair, Bensinger stumbled and began throwing "lazy punches" that lacked any force, "just kind of throwing his arms." Defendant continued to hit Bensinger in the face and "beat him around in a circular motion in the yard." No one tried to stop the fight. It appeared to be over when "it seemed like neither one of them had anything left." Defendant was on top and Bensinger was lying "pretty much motionless." Several people separated them. Two of defendant's friends delivered additional blows to Bensinger's face. Bensinger was left, bleeding from his chest.

When Bensinger's shirt was removed, his friends observed a hole in his chest and several cuts on his back. Paramedics arrived within minutes but found Bensinger with no vital signs. Bensinger was taken to Underwood Memorial Hospital in Woodbury. The source of the bleeding was found to be a hole in Bensinger's heart. Physicians were unable to suture the wound in time to save his life. Bensinger suffered six stab wounds: the fatal stab wound on the left side of his chest that penetrated the left ventricle of his heart, three superficial wounds, and two other non-fatal wounds.

Defendant left the party in Michael Keeper's car with Billy Robinson, Steven Clark, and As-Samad Peace. Defendant had cut his finger to the bone during the fight. His head was also bleeding. Clark suggested that they go to a hospital, but believed that the hospital in Woodbury would not be a good idea because "they're going to be looking for" defendant and so, they decided to go to a hospital in Camden.

Keeper testified that, on the way to the hospital, defendant stated "that he was gutting that motherfucker and how he was digging into him. How he had stabbed him so many times, stabbed him like a fish." When they got to Camden, they stopped the car and Robinson and Clark left for approximately fifteen minutes to "ditch the knife," which was never recovered. Defendant told the emergency room physician that he had punched a window out of anger and injured his head when he fell through the glass.

Defendant did not testify at this trial. After discussing the matter with counsel, the court permitted the prosecutor to read a redacted transcript of defendant's testimony from the prior trial into evidence. Before the prosecutor read the testimony, the judge instructed the jury, as requested by defense counsel, that the reading of defendant's testimony did not change the burden of proof; that the State had the burden of proof beyond a reasonable doubt; that the defendant had an absolute constitutional right to decline to testify in the trial; and that, in the event that defendant chose not to testify at trial, the jury could not consider that fact in its deliberations.

The testimony from the first trial included the following: Defendant acknowledged that he purchased a knife after his father was indicted and brought it to the party. He had the knife in his hand "pretty much all day" and had it in his hand when Bensinger approached him. Defendant's friends tried to tell Bensinger that he did not really want to fight and when it seemed that Bensinger was calming down, defendant started walking away. Bensinger then punched him in the left side of his head and continued to hit him, causing defendant to lose his balance. After steadying himself on the ground, defendant began to fight. Defendant held the small open knife in his right hand and hit Bensinger with his right hand during the fight. Defendant believed that he held it in such a manner that no one else would see it and did not believe that Bensinger knew that he had a knife when he threw the first punch. Defendant left the party after he and Bensinger were pulled apart. Defendant also stated that he told the emergency room physician a false explanation for his wounds because it had been "brought to my attention that Christopher Bensinger might have been hurt."

The jury acquitted defendant of purposeful/knowing murder, N.J.S.A. 2C:11-3(a)(1), but convicted him of the lesser included offense of passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2) (count one). He was convicted of possession of a weapon under circumstances not manifestly appropriate for such lawful uses it may have, N.J.S.A. 2C:39-5(d) (count two); and acquitted of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three). Defendant was sentenced to a term of eight years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a mandatory three-year term of parole supervision on count one, a concurrent term of nine months on count two, and appropriate fines and penalties.

Defendant raises the following issues in this appeal:

 

 

POINT I

 

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE.

 

POINT II

 

THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF PASSION/PROVOCATION MANSLAUGHTER WHILE FINDING HIM NOT GUILTY OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WAS INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE.

 

POINT III

 

THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT II CHARGING POSSESSION OF A WEAPON UNDER CIRCUMSTANCES NOT MANIFESTLY APPROPRIATE FOR SUCH LAWFUL USES AS IT MIGHT HAVE INTO COUNT I IN WHICH THE DEFENDANT WAS CONVICTED OF PASSION/PROVOCATION MANSLAUGHTER.

 

POINT IV

 

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

 

After reviewing the briefs and record, we are satisfied that the arguments raised in Points I and II lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2). We do, however, agree that merger of the manslaughter and weapons possession convictions was required on the facts of this case and that the trial court erred in finding aggravating factor (1) (N.J.S.A. 2C:44-1(a)(1)). Therefore, we remand for re-sentencing.

I

Defendant's conviction for possession of a knife under manifestly inappropriate circumstances, N.J.S.A. 2C:39-5(d), is a lesser included offense of possession of the same knife for an unlawful purpose (N.J.S.A. 2C:39-4d), State v. Purnell, 394 N.J. Super. 28, 33 (App. Div. 2007); State v. Jones, 213 N.J. Super. 562, 568 (App. Div. 1986), certif. denied, 107 N.J. 90 (1987), a charge on which defendant was acquitted. Defendant argues that, because merger is required "[w]hen the only unlawful purpose in possessing the [knife] is to use it to commit the substantive offense," State v. Diaz, 144 N.J. 628, 636 (1996), merger of the lesser included offense with the manslaughter count is required here.1 Under the facts of this case, the stabbing of Bensinger "provides the factual underpinning for drawing an inference that" the knife was possessed under circumstances not manifestly appropriate for lawful uses. See Romero, supra, 191 N.J. at 79. We therefore agree that merger of the two counts was required here and remand for the merger of defendant's conviction for possession of a knife under circumstances not manifestly appropriate for a lawful use (count two) into his conviction for manslaughter (count one).

II

In imposing sentence, the sentencing court is required to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); N.J.S.A. 2C:43-2(e); R. 3:21-4(g). If "the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record," the sentence should be affirmed. O'Donnell, supra, 117 N.J. at 215. See also State v. Dalziel, 182 N.J. 494, 501 (2005); State v. Megargel, 143 N.J. 484, 493 (1996); State v. Roth, 95 N.J. 334, 364 (1984). See also N.J.S.A. 2C:44-7.

The trial court found the following aggravating factors: (1) (nature and circumstances of offense and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner) (N.J.S.A. 2C:44-1(a)(1)); (3) (risk that the defendant will commit another offense) (N.J.S.A. 2C:44-1(a)(3)); and (9) (need to deter defendant and others) (N.J.S.A. 2C:44-1(a)(9)). The court gave "slight to moderate weight" to aggravating factor (1); no weight to its finding that aggravating factor (3) applied; and, noting that aggravating factor (9) "applies in every case of this type[,]" gave that factor "substantial weight." The court also found mitigating factor (7), (defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time) (N.J.S.A. 2C:44-1(b)(7)), and gave that factor "moderate weight."

For aggravating factor (1) to apply in a homicide, the "cruelty" involved describes an intent "not only to kill, but 'to inflict pain, harm, and suffering - in addition to intending death.'" O'Donnell, supra, 117 N.J. at 217-18) (quoting State v. Ramseur, 106 N.J. 123, 208 (1987)). The court stated the following reasons for its finding that aggravating factor (1) applied:

Although the fact that Christopher Bensinger died was part of the manslaughter conviction found by this jury, it is clear from the facts in this case that the defendant was the only person with a knife and did inflict other wounds upon the victim. The jury found that this was inflicted at a time when the defendant acted in the heat of passion resulting from a reasonable provocation. Nevertheless, the Court does find that this factor applies due to the fact that the defendant engaged in this fight with the victim with a deadly weapon, as found by the jury, and the victim had no knowledge of the fact that he was possessing or using this weapon. The Court finds this to be an especially cruel act.

 

These reasons fail to support a finding that aggravating factor (1) is applicable because they double-count an element to prove defendant's guilt on the weapon possession charge and because the facts cited fall short of showing that defendant acted in an especially heinous, cruel or depraved manner.

"[F]acts that establish[] elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence." State v. Kromphold, 162 N.J. 345, 353 (2000) (citing State v. Yarbough, 100 N.J. 627, 633 (1985)). In Yarbough, the Court held that where the age of the victim elevates the sexual assault against her to a first-degree offense, the victim's age could not be used as an aggravating factor. Yarbough, supra, 100 N.J. at 645-46. See also, e.g., State v. Pineda, 119 N.J. 621, 627-28 (because death was an element of the crime of death by auto, the victim's death could not be considered as an aggravating factor); State v. Pillot, 115 N.J. 558, 577 (1989) (holding that where use of BB gun elevated robbery from second-degree to first-degree crime, use of weapon could not be considered aggravating factor for sentencing purposes); State v. Jarbath, 114 N.J. 394, 404, (1989) (where a child's death was element of the offense of second-degree manslaughter, death of a child could not be considered as support for the seriousness-and-gravity-of-harm aggravating factor); State v. Link, 197 N.J. Super. 615, 620 (App. Div. 1984) (where victim's status as police officer was essential element of offense, that status could not be used as aggravating factor for sentencing purposes), certif. denied, 101 N.J. 234, (1985).

Although the trial court recognized that the fact of the victim's death could not be used to support this aggravating factor, its reasons for finding that the offense here was "an especially cruel act" were that "the defendant was the only person with a knife and did inflict other wounds [in addition to the lethal wound] upon the victim[,]" that "defendant engaged in this fight with the victim with a deadly weapon," and "the victim had no knowledge of the fact that he was possessing or using this weapon." The court's reliance upon defendant's use of a weapon and the victim's lack of knowledge of that fact is similar to the trial court's analysis in Pillot, supra, 115 N.J. at 564, that was rejected by the Supreme Court.

In Pillot, defendant had committed six armed robberies in a nine-week period of time. The trial court found aggravating factor (1), stating that "the offense was particularly heinous because a gun was used to rob unsuspecting people." Ibid. The Court disapproved this reasoning as "double-counting":

[P]ursuant to N.J.S.A. 2C-15-1b, the use of the unloaded BB gun elevated the robbery offense from a second-degree offense to a crime of the first degree and, as such, the severity of the criminal conduct through the use of a gun has been factored into the offense with which defendant is charged. Hence, the court may not again consider or double-count the use of a firearm as an aggravating factor.

 

[Ibid.]

Here, too, the trial court's reliance upon the fact that defendant possessed a deadly weapon "double-counts" a fact necessary to prove his guilt of possession of a weapon under manifestly inappropriate circumstances.

Further, although defendant inflicted five non-lethal wounds in addition to the fatal wound, that fact does not turn the stabbing here into one that is particularly heinous, cruel or depraved. See, e.g. State v. Teat, 233 N.J. Super. 368, 374 (App. Div. 1989). The evidence does not support a finding that defendant inflicted any of the wounds with the intention "to inflict pain, harm, and suffering -- in addition to intending death." O'Donnell, supra, 117 N.J. at 217-18 (quoting Ramseur, supra, 106 N.J. at 208). To the contrary, it was undisputed that the victim initiated both the verbal argument and then, the physical altercation, by throwing the first punch at defendant despite efforts by others to discourage a fight. Because it was inappropriate for the court to find aggravating factor (1) based upon the evidence here, the court's consideration of that factor violates the guidelines and, therefore, constitutes grounds for vacating defendant's sentence. Kromphold, supra, 162 N.J. at 355; Pineda, supra, 119 N.J. at 628 (citing O'Donnell, supra, 117 N.J. at 215).

D

efendant's conviction is affirmed. We reverse and remand for merger of the manslaughter and weapons possession counts and for re-sentencing.

1 Defendant failed to raise the merger issue before the trial court. However, because merger issues "implicate a defendant's substantive state constitutional rights," Diaz, supra, 144 N.J. at 637, "[t]he failure to merge convictions results in an illegal sentence for which there is no procedural time limit for correction." State v. Romero, 191 N.J. 59, 80 (2007) (citing R. 3:22-2(c); R. 3:22-12(a)).