STATE OF NEW JERSEY v. AMEER SCOTT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5664-04T45664-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMEER SCOTT,

 

Defendant-Appellant.

___________________________________

 

Submitted October 31, 2006 - Decided December 6, 2006

Before Judges Weissbard and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Ind. No. 04-10-3205.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Joan T. Buckley,

Designated Counsel, of counsel and on

the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Debra G. Simms,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Ameer Scott appeals his conviction after a jury trial on three counts of a five-count indictment: aggravated assault (second-degree), N.J.S.A. 2C:12-1b(1) (count three); unlawful possession of a weapon (fourth-degree), N.J.S.A. 2C:39-5(d) (count four); and possession of a weapon for an unlawful purpose (third-degree), N.J.S.A. 2C:39-4(d) (count five). Defendant was found not guilty of attempted murder (count two) and conspiracy to commit murder (count one). A co-defendant, Khalif Jones, was acquitted of all charges. After merger of count five, defendant was sentenced to a ten-year prison term for aggravated assault, subject to the 85% parole ineligibility provision of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. A concurrent eighteen-month term was imposed on the unlawful possession of a weapon conviction.

On appeal, defendant presents two arguments for our consideration:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR, ONE CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT, BY FAILING TO ORDER, ON ITS OWN INITIATIVE, A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT ON COUNT FIVE BECAUSE, BASED ON THE FACTS BROUGHT OUT AT TRIAL AND ON THE NOT GUILTY VERDICTS FOR CONSPIRACY TO COMMIT MURDER AND ATTEMPTED MURDER, THERE WAS INSUFFICIENT EVIDENCE TO CONVICT ON COUNT FIVE. (Not Raised Below)

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR WHEN IT SENTENCED THE DEFENDANT TO TEN YEARS WITH AN 85% PAROLE DISQUALIFIER ON COUNT THREE BECAUSE THE COURT DID NOT PROPERLY CONSIDER THE AGGRAVATING AND MITIGATING FACTORS. (Not Raised Below, Partially)

We see no need to set out the facts in order to resolve these issues.

As the State correctly points out, defendant's insufficient evidence argument (Point I), advanced for the first time on appeal, is essentially a claim that there was an inconsistency in the verdicts. With respect to the unlawful possession of a weapon, the judge properly charged the jury, see State v. Petties, 139 N.J. 310, 319-21 (1995), that it was not permitted to speculate concerning defendant's possible purpose in possessing the weapon (in this case a knife) but must confine itself to the purpose alleged by the State: "In this case, the State contends that the defendant's unlawful purpose in possessing the weapon was to attempt to commit the crime of murder upon Ryan Benjamin."

Of course, defendant was acquitted of the attempted murder charge. As a result, he argues that his possession for an unlawful purpose conviction cannot stand with its foundation thus removed.

As a general matter, our system permits inconsistent verdicts so long as the evidence is sufficient to support the charge on which there is a conviction. State v. Grey, 147 N.J. 4, 9-12 (1996). Of course, if there is an erroneous or misleading instruction which may have caused the inconsistency and which infects the count of conviction, a reversal is mandated. Id. at 12-17; State v. Ellis, 299 N.J. Super. 440, 457 (App. Div.), certif. denied, 151 N.J. 74 (1997). In Ellis, we noted that our courts had previously found an exception to the inconsistent verdict rule "where an acquittal on one count necessarily precludes the finding of an element of another offense of which a defendant is convicted." Ibid. However, we questioned the continued validity of such an exception, particularly in light of Grey. Id. at 458-59.

The inconsistent verdict rule has been applied in a number of decisions involving convictions for possession of a weapon for an unlawful purpose. However, in each instance there were peculiarities arguably not present in this case. See State v. Petties, supra, 139 N.J. at 315-19; State v. Brims, 168 N.J. 297, 302-05 (2001). Indeed, in Petties, the Court cautioned against "overreading" an earlier case from this court, State v. Jenkins, 234 N.J. Super. 311 (App. Div. 1989), as standing for the proposition "that every acquittal of the substantive charge involving the use of a gun requires an erasure of the charge of possession for an unlawful purpose." Petties, supra, 139 N.J. at 317. Yet, defendant's argument in the present case might have some residual merit were it not for the Court's most recent pronouncement on the subject. In State v. Banko, 182 N.J. 44 (2004), the defendant allegedly kidnapped and sexually assaulted the victim using a B.B. gun. The judge charged the jury that the alleged unlawful purpose for possessing the weapon "was to unlawfully confine [the victim] for the purpose to commit the crime of aggravated sexual assault upon [her]." Id. at 51. He was acquitted of all the substantive charges, including aggravated assault by pointing a firearm, but was convicted of possession of the weapon for an unlawful purpose. Id. at 45-52. The trial judge granted the defendant's motion for a new trial finding the unlawful purpose conviction "legally incongruous" with the acquittals and we affirmed. Id. at 52.

The Court reversed and reinstated the weapons conviction. The Court reasoned that it would require unwarranted speculation to determine why the jury acted as it did. Id. at 56-57. While the jury might have accepted some of the State's proof and rejected other aspects, or simply acted out of lenity, the verdict must stand so long as there was sufficient evidence to support the conviction. Id. at 58. See also State v. Muhammad, 182 N.J. 551, 578 (2005). Thus, under Banko, defendant's inconsistent verdict argument must be rejected.

In any event, we note that the facts of the present case provide an even stronger basis for rejection of defendant's argument since, although he was acquitted of attempted murder, he was convicted of aggravated assault on the victim with the same weapon. Clearly, the judge would have been better advised to charge both the attempted murder and the assault as potential unlawful purposes, but the failure to do so is not fatal. Even if Banko had not settled the issue, we would conclude that the conviction on a related lesser-included offense provides an ample basis for the jury's verdict. Indeed, in this light, the verdict can be viewed as consistent, not inconsistent.

Defendant's sentencing argument has merit. His greater than presumptive ten-year term must be remanded pursuant to State v. Natale, 184 N.J. 458 (2005). Since there will be a new sentencing, defendant will have the opportunity to present anew to the trial judge his argument that the judge misapplied the applicable aggravating and mitigating factors. In particular, there appears to be merit to defendant's contention that mitigating factor five, N.J.S.A. 2C:44-1b(5), was applicable. See State v. Robinson, 266 N.J. Super. 268, 282 (App. Div. 1993), rev'd on other grounds, 136 N.J. 476 (1994). The fact that the victim's conduct did not excuse defendant's actions does not render the factor inapplicable, as the judge seemed to suggest.

Convictions affirmed; remanded for re-sentencing.

 

The indictment itself did not specify defendant's unlawful purpose but merely tracked the statutory language.

(continued)

(continued)

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A-5664-04T4

December 6, 2006