STATE OF NEW JERSEY v. LAMOND WALKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5064-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAMOND WALKER, a/k/a

LAMOUND WALKER,

Defendant-Appellant.

____________________________________

November 12, 2014

Submitted November 5, 2014 Decided

Before Judges Yannotti, Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 12-08-0671.

Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and second-degree certain persons not to have weapons, N.J.S.A.2C:39-7b. We affirm.

Two masked and armed men attempted to rob a group of individuals, one of whom was an off-duty police officer. The officer drew his weapon, a shootout ensued, and the two men fled the scene. The police investigation led to the discovery of a mask, a shotgun, and a handgun in a nearby apartment. They analyzed the handgun and determined that it discharged a bullet found at the crime scene. The police found defendant's DNA on the handgun and arrested him.

A grand jury indicted and charged defendant with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a, (Count One); first-degree robbery with the use of a deadly weapon, N.J.S.A. 2C:15-1a(1), (2) and N.J.S.A. 2C:2-6 (Count Two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, (Count Four); third-degree receiving stolen property, N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2b(2)(b), (Count Five); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b, (Count Six).

A judge and jury tried defendant on Counts One through Five. The jury found defendant guilty on Count Four and acquitted him on the other counts. Defendant subsequently pled guilty to Count Six. The court sentenced defendant to a term of ten years in prison with five years of parole ineligibility on Count Four, concurrent to the same prison term on Count Six.

Defendant raises the following arguments on appeal

POINT I

[DEFENDANT] WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BY THE TRIAL COURT'S FAILURE TO AFFIRMATIVELY INFORM THE JURY THAT IF THEY FOUND WALKER'S POSSESSION OF THE HANDGUN IN EVIDENCE WAS PASSING, FLEETING, OR UNCERTAIN IN NATURE, THEY SHOULD ACQUIT HIM OF POSSESSION OF THAT GUN (Not Raised Below).

POINT II

BECAUSE IT WAS PREDICATED UPON [DEFENDANT'S] CONVICTION OF POSSESSION OF A WEAPON WITHOUT A PERMIT, [DEFENDANT'S] GUILTY PLEA TO "CERTAIN PERSONS" MUST BE VACATED.

POINT III

BECAUSE THE TRIAL COURT FAILED TO PROVIDE SUFFICIENTLY DETAILED REASONS FOR THE SENTENCES IMPOSED AND FAILED TO FIND AT LEAST ONE MITIGATING FACTOR, IF EITHER OR BOTH OF [DEFENDANT'S] CONVICTIONS ARE AFFIRMED, THIS MATTER MUST BE REMANDED FOR RE-SENTENCING.

I.

We reject defendant's argument that the judge improperly charged the jury on possession of the handgun. Defendant's contention is premised on the misguided assumption that the judge must have erred because the jury acquitted him on the other charges.

Defense counsel did not object to the jury charge even though defendant had the obligation "to challenge instructions at the time of trial." State v. Morais, 359 N.J. Super. 123, 134 (App. Div.) (citing R. 1:7 2), certif. denied, 177 N.J. 572 (2003). Failure to object creates a "presum[ption] that the instructions were adequate." Id. at 134-35. Thus, we review this claim under the plain error standard. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

It is undisputed that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Id. at 287-88. The charge must be read as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008).

We further note that "[o]ur 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, 201 N.J. 471, 487 (2010). "'Each count in an indictment is regarded as if it was a separate indictment.'" State v. Muhammad, 182 N.J. 551, 578 (2005) (quoting State v. Banko, 182 N.J. 44, 53 (2004)). Appellate courts should not speculate as to "the nature of the deliberations in the jury room" or whether the verdict "resulted from jury lenity, mistake, or compromise." Ibid.

Applying the appropriate standards, we see no error, let alone plain error, in this case. The judge gave the following instruction to the jury regarding possession

The word possession means a knowing, intentional control of a designated thing accompanied by a knowledge of its character. . . .

Thus, to possess an item under the law, such as a handgun, the person must know or be aware that he possesses the item and he must know what it is that he possesses or controls. Meaning that he must know that it is a gun. But this possession cannot merely be a passing control that is fleeting or uncertain in its nature. In other words, to possess within the meaning of the law, [defendant] must knowingly procure or receive the item possessed or be aware of his control thereof for a sufficient period of time to have been able to relinquish his control if he chose to do so.

[Emphasis added.]

The jury asked for clarification on the issue of possession, and the judge repeated the same instructions without objection. The charge gave the jury a clear explanation of the law on possession.

II.

We conclude that defendant's second argument, that his guilty plea to the certain persons offense should be vacated because he was unfairly convicted of unlawful possession of a handgun, is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following brief remarks.

Defense counsel indicated that "since [defendant has] been convicted of [illegal] possession of a weapon, I advised [him] that I would plead [him] guilty for [Count Six] and the State would recommend that [he] receive a concurrent sentence[.]" Defendant agreed to plead guilty. The judge questioned defendant, obtained an adequate factual basis, and properly concluded that defendant pled guilty knowingly, voluntarily, and intelligently.

III.

Defendant urges us to remand for re-sentencing because he contends that the judge (1) failed to find mitigating factor N.J.S.A. 2C:44-1b(11) (imprisonment would cause excessive hardship to dependents); and (2) provided insufficient reasons for finding aggravating factors N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense), (6) (the extent of defendant's prior criminal record and the seriousness of the offense of which he has been convicted), and (9) (need for deterring defendant and others from violating the law).

Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed which is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court must consider the relevant aggravating factors and may consider the relevant mitigating factors. See N.J.S.A. 2C:44-1a and -1b.

The court must then "determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.

Here, the judge gave sufficient reasons for her findings at sentencing. She found that defendant had a serious criminal record, prior substance abuse issues, an incomplete work history, substantial outstanding child support arrears, and defendant was not the primary caregiver for his two children. These findings supported the aggravating factors found and showed that mitigating factor eleven was inapplicable. See State v. Blackmon, 202 N.J. 283, 301 (2010) (finding that mitigating factor eleven does not apply when the record does not suggest a defendant is supporting any family members).

There is no reason to second-guess the judge's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).

Affirmed.