STATE OF NEW JERSEY v. CARL FISH

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2900-04T32900-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL FISH,

Defendant-Appellant.

________________________________

 

Argued February 7, 2006- Decided February 21, 2006

Before Judges Collester and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-05-00706.

Michelle Joy Munsat argued the cause for appellant.

Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant, Carl Fish, was convicted of terroristic threats, N.J.S.A. 2C:12-3b; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and unlawful possession of a weapon, N.J.S.A. 2C:39-5d. He was sentenced to concurrent three year terms of imprisonment for the first two offenses, and a concurrent nine month sentence for the third offense. He received 295 days of jail credit. R. 3:21-8. He appeals from the conviction and the sentence.

I

Based on the trial testimony, the following facts are most pertinent. Jean Losier, a taxicab driver, testified that defendant was a frequent customer. Defendant used a wheelchair and resided at the Swan Motel in Elizabeth. Losier picked up defendant from the motel at about ten o'clock in the evening on March 14, 2004, and at defendant's direction, drove him to Woodbridge to check a mailbox at a house defendant claimed was his. Although Losier was skeptical that defendant owned the house, he helped defendant check the mailbox. Defendant then told Losier to take him back the Swan Motel. But on the way back, defendant directed Losier to turn onto a dark street with no houses. Losier described the street as "[j]ust very dark. And only trees all over."

Losier refused to continue unless defendant would tell him "exactly where you're going." When defendant refused, Losier stopped the car. At that point, defendant reached into his coat pocket, pulled out a silver-colored knife and told Losier, "today is your last day." Losier got out of the car and used his cell phone to call his dispatcher, who in turn telephoned the police. To his surprise, Losier then saw defendant get out of the cab and start walking away; Losier had previously thought defendant was unable to walk.

Losier testified that, although he thought he would be able to defend himself because defendant was "too old" to kill him, he was "very scared." He testified that he had previously trusted defendant, and had allowed him to sit in the front seat because he was handicapped.

Officer Goins, who responded to the scene, testified that Losier "appeared very scared. He was sweating. He was agitated." Goins also observed defendant running or quickly walking away from the scene. Goins testified that police recovered the knife after Losier directed them to the location where he had seen defendant discard it. Officer Klimuc, who also arrived on the scene, testified that Losier appeared to be scared, nervous and "shaking a little bit."

In his testimony, defendant admitted having a knife, but denied using it to threaten Losier. He testified that he directed Losier down a dark street because it was the shortest route to his destination, a Denny's restaurant. He and Losier had a disagreement after Losier tried to overcharge him and appeared to be threatening to abandon him on a dark street in the cold. According to defendant, when Losier pulled out his cell phone, defendant thought it was a knife. When defendant realized that it was in fact a cell phone and Losier was threatening to call the police, defendant threw his own knife away to avoid getting in trouble.

II

On this appeal, defendant raises the following contentions:

POINT I: DEFENDANT'S TERRORISTIC THREAT CONVICTION PURSUANT TO N.J.S.A. 2C:12-3b MUST BE REVERSED, AS THE STATE FAILED TO PROVE AN ELEMENT OF THE OFFENSE.

POINT II: DEFENDANT'S CONVICTION FOR UNLAWFUL POSSESSION OF A WEAPON SHOULD HAVE BEEN MERGED INTO HIS CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE.

POINT III: DEFENDANT'S SENTENCE MUST BE VACATED, AS IN SENTENCING HIM, THE TRIAL JUDGE HAD BEFORE HER IMPROPER, HIGHLY PREJUDICIAL DOCUMENTS.

POINT IV: THE TRIAL JUDGE ERRONEOUSLY CONSIDERED AGRRAVATING AND MITIGATING FACTORS AND FAILED TO MAKE NECESSARY FINDINGS IN SUPPORT OF DEFENDANT'S SENTENCE.

Having read the trial transcript, we conclude that defendant's first point is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments. Defendant admitted that he had his knife open and in view while he was in the car. The jury evidently believed Losier's testimony that defendant threatened him with the knife and told him that "today is your last day." Losier testified that he was "very scared." Two police officers corroborated his testimony on that point. We have no difficulty in concluding that the evidence supports defendant's conviction for threatening to kill Losier "with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out." N.J.S.A. 2C:12-3b. We turn next to the sentencing issues.

The State concedes that the weapons possession conviction should merge with the conviction for possession of a weapon for an unlawful purpose. Accordingly we vacate the nine month sentence imposed for the weapons possession conviction and remand this matter to the trial court to enter a corrected judgment of conviction.

Defendant contends that at the sentencing the trial judge had before her a pre-sentence report that improperly addressed information concerning a different offense and contained other extraneous information. But in reviewing the transcript of the sentencing, we find that defense counsel brought this to Judge Cantor's attention, stating:

Judge, with regard to the sentence, I believe the PSI is incorrect. This PSI reflects an incident that was his last trial. In his last trial, he was accused of a bias harassment, intimidation. The Court [Judge Cantor] presided over this trial. This is talking about the other trial. The PSI reflects the other incident, with regard to the trial before Judge Mulvihill, where Mr. Fish was found not guilty of all [i]ndictable offenses, except for a couple DP's.

After Judge Cantor gave defendant an opportunity to review the PSI, his attorney again advised the judge that the report contained errors and asked that the court not consider any of the erroneously-included material. The judge indicated that she would consider defendant's prior indictable conviction, although it was then on appeal. She did not indicate that she had, or would, consider any offense as to which defendant was acquitted.

At sentencing, defense counsel also asked the judge to impose a fine, rather than sentence defendant to probation or to prison, pointing out that defendant had mental health problems, was sixty-five years old and was confined to a wheelchair. Counsel also argued that defendant had led a law-abiding life "for almost 60 years. I think alcohol caught up with him. I think his depression has caught up with him."

In deciding to sentence defendant to prison rather than to probation or a fine, the judge indicated very specifically what she considered. None of it includes the information to which defendant objects on this appeal:

The defendant . . . had a prior jury verdict in 2000 for terroristic threats and creating a risk of injury or damage. He had a Violation of Probation. Also, two prior disorderly convictions in '99 and 2002. There is also a detainer lodged against the defendant out of Pennsylvania for driving while under the influence.

This defendant has a history of depression, has sought treatment, has reported alcohol abuse, but has refused to undergo a Task Evaluation. During his last term of probation, he refused to comply with any conditions impose by the Court. . . I find the following aggravating factors: The risk that he will commit another offense. I find that based on his conduct, both in this matter, of which he was Indicted, and considering the conduct of his prior matter, and his [disorderly] person's convictions, that Mr. Fish has been a law-abiding citizen for a significant period of his life.

And, for whatever reason, has gotten out of control. And because of this, this Court finds he is a threat to those around him, based on this behavior of the terroristic threats, and, now, a threat with a knife. I also consider the need to deter this defendant and others from violating the law.

On mitigating factors, I did consider that the victim of the defendant's conduct, induced or facilitated the commission. I understand that the taxicab driver . . . decided he would not complete the journey, that Mr. Fish had sought to have completed. Perhaps, this induced the defendant to become so charged [sic]. But, certainly, doesn't warrant pulling out a knife

or threatening someone with their last day. . .

It is because I am relying on the prior Indictable, as well as this Indictment, that I'm committing this defendant to [prison] for a term of three years.

We find no abuse of discretion or other error in the decision to sentence defendant to a prison term rather than probation or a fine. See State v. Roth, 95 N.J. 334, 364 (1984). The trial judge properly considered defendant's prior criminal record and his lack of cooperation with the terms of his previous probationary sentence in determining that incarceration was warranted. And she imposed the lowest sentence in the range applicable to a third degree crime.

We therefore affirm the imposition of the concurrent three year sentences for terroristic threats and possession of a weapon for an unlawful purpose. As previously indicated, we remand for the limited purpose of correcting the judgment of conviction to reflect the merger of the weapons possession conviction with the conviction for possession of a weapon for an unlawful purpose.

Affirmed in part and remanded.

 

(continued)

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8

A-2900-04T3

February 21, 2006

 


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