STATE OF NEW JERSEY v. JAQUAN O'NEAL
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4790-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAQUAN O'NEAL, a/k/a JAQUAN
WALLACE,
Defendant-Appellant.
Submitted December 10, 2018 – Decided February 4, 2019
Before Judges Messano and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment Nos. 14-02-0242,
16-09-1162, and 16-12-0786.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stephen P. Hunter, Assistant Deputy Public
Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Charles C. Cho, Assistant Prosecutor, on
the brief).
PER CURIAM
A jury convicted defendant Jaquan O'Neal of third-degree possession of
heroin, N.J.S.A. 2C:35-10(a)(1); second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b); and fourth-degree possession of a defaced
firearm, N.J.S.A. 2C:39-3(d). He was sentenced to an aggregate seven-year term
of imprisonment with forty-two months of parole ineligibility pursuant to the
Graves Act, N.J.S.A. 2C:43-6(c).1 Defendant claims he was deprived of a fair
trial by the trial court's response to the jury's request for a playback of audio -
recorded testimony, an erroneous evidentiary ruling, and failure to tailor the
identification jury instruction to the facts of his case. Alternativel y, defendant
contends the weapons offenses should have merged at sentencing. Based on our
review of the evidence in light of the applicable law, we affirm defendant's
convictions and remand for merger of the weapons offenses.
I.
Defendant was arrested in Jersey City in the early morning hours of
September 7, 2013. The facts pertinent to this appeal were adduced at trial
1
Concurrent terms of imprisonment were also imposed on two unrelated
convictions pursuant to post-verdict plea arrangements, and defendant was
sentenced to time served for an unrelated disorderly persons wandering offense,
N.J.S.A. 2C:33-2.1. None of these convictions is the subject of the present
appeal.
A-4790-16T2
2
through the State's primary witness, Sergeant Keith Ludwig, a twenty-year
veteran of the Jersey City Police Department (JCPD). Assigned to the street
crime unit, Ludwig and approximately twenty other officers from that unit
responded to an apartment complex upon receipt of unspecified complaints by
management of the complex. When Ludwig and his partner entered the
complex, Ludwig observed a vehicle parked illegally on the sidewalk. The right
passenger door of the vehicle was open. Approximately ten to twelve people
were within fifteen to twenty feet of the car. Simultaneously, Ludwig heard a
radio transmission describing an individual that other members of his unit were
pursuing in the complex.
Based on the radio transmission, Ludwig "sped up [his] approach into the
complex[,]" identified himself as a police officer, and ordered the group of
individuals to stop. Ludwig testified:
And . . . as I got closer, [defendant] separated
himself from the group and I observed him immediately
go over to that parked vehicle that had the right rear
passenger door open. [Defendant] reached into his
right waistband with his right hand and threw a silver
and black handgun in through the open door.
I immediately drew my service weapon on him,
told him[, "S]top, police, get away from the vehicle.["
Defendant] ignored my commands. He went into his
left pocket with his left hand and threw several small
A-4790-16T2
3
objects -- . . . I could not decipher what they were at the
time, into that open vehicle.
I kept ordering him to get away from the vehicle,
["S]top, stop, stop,["] with my gun pointed at him.
[Defendant] refused my commands and he made sure
he got back into that group he came from.
....
Within seconds to minutes, there w[ere fifty] to [one
hundred] people that came out of the complex, came out
of everywhere, and they were just surrounding us in this
courtyard area.
Because the weapon was not immediately recovered, and the officers were
"severely out[]numbered[,]" a "city-wide assist" was requested. Accordingly,
all on-duty Jersey City officers responded to the complex and controlled the
crowd. After placing defendant under arrest, without incident, Ludwig
recovered a handgun, a bundle of heroin, and a bag of marijuana from the rear
seat of the vehicle.
Ludwig did not author any reports pertaining to the incident. Instead, an
investigation report was prepared by Officer Vincent Alberto based on Ludwig's
account. During cross-examination, defense counsel questioned Ludwig about
an apparent inconsistency in a use-of-force report, which he did not author nor
approve as a supervisor. In particular, the report indicated force was used to
subdue defendant. Ludwig stated that the reference to defendant in that report
A-4790-16T2
4
was a mistake, and should have identified another person at the scene against
whom force was used.
Over defense counsel's objection, on redirect examination, the trial court
permitted the State to question Ludwig about statements contained in Alberto's
report, which were consistent with Ludwig's testimony. In doing so, the court
determined defense counsel's inquiry about the use-of-force report had
"attacked" Ludwig's credibility and, as such, the State was not seeking to bolster
Ludwig's testimony. The State then asked Ludwig to "summarize . . . some of
the relevant or important information that you [told Alberto that he] placed in
the investigation report." In response, Ludwig testified:
I relayed to Officer Alberto my exact observations,
where I came into the complex from . . . the Bright
Street side, who I was with, the clothing description of
[defendant], exactly what I saw. I described what I saw,
[defendant]'s actions, you know, which way he went,
the fact that he ignored my commands, that he separated
himself from the group, went back to the group.
Everything that I felt was important to put in the report
to refresh my recollection for trial.
Toward the end of the first day of deliberations, the jurors sent a note to
the trial court, requesting to "see a copy of the police report." The court
instructed the jurors, in open court, that because the report was not admitted in
evidence, the report could not be provided to them. Immediately thereafter, a
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juror asked a question, prompting the court to reply that the jury could request
a playback of testimony. Either the same juror or another, responded: "We also
need like the first three paragraph[s] as . . . the officer entered the premises. I
[woul]d like to know what happened with that first - - [.]"
The trial court interrupted the juror, instructing the jury to clarify their
request in writing, presumably when they returned to the jury room. While the
jurors remained in the courtroom, defense counsel asked whether they should
"write specifically the testimony that they wanted to hear?" In response, the
court instructed the jury, as follows:
[I]f you know what part of the testimony of any of the
witnesses you want to hear, then you let me know that.
Or if you want to hear it all the way through, or if there
[i]s a part where you hear it and you [a]re finished, you
can maybe raise your hand and do it that way.
Immediately thereafter, one or more jurors requested to "hear" the police
report. The judge responded that the jurors could hear testimony about the
report, and instructed them to return to the jury room and send out a written note
indicating how they wished to proceed; whether they had any other questions;
and whether they wished to adjourn at 4:30 p.m. or 5:00 p.m., or resume
deliberations the following day. The jurors, in turn, submitted a note to the court
indicating they wanted to hear Ludwig's entire testimony, but elected to retire
A-4790-16T2
6
for the evening. The court informed the jury, in open court, that the playback
would take approximately two hours and fifteen minutes, and they could hear
the entire testimony or stop the playback when they heard sufficient testimony
by raising their hands.
The following day, before replaying Ludwig's testimony, a juror inquired
in open court, "We can stop if someone raises [his or her] hand, we can do it
with a quick vote, we can stop this, right, if we [ha]ve heard enough?" Although
the court indicated it would permit the jurors to stop the testimony, it further
indicated its intention to also play back Ludwig's testimony on cross-
examination.
After hearing most of Ludwig's direct testimony, a juror stated that
playback could be stopped. When the court indicated it would then begin
playback of Ludwig's cross-examination, a juror asked whether they "ha[d] to
listen to the cross" and another juror stated, "We [a]re done with the testimony."
The record also indicates one or more jurors motioned to the court that there was
no need to hear additional testimony.
During the court-initiated sidebar conference that followed, the court
expressed its intention to excuse the jurors to continue their deliberations
because, "They [a]re pretty adamant about it. They do n[o]t want to hear cross
A-4790-16T2
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[-]examination even though [the court] asked a couple of times." The State
added, "I would just note for the record . . . [that] the jurors . . . were all
conferring with one another. It did n[o]t seem like there was one dissenter in
the bunch regarding the decision to just end it with direct [examination]." Over
defense counsel's objection, the court advised the jurors to resume deliberations
without replaying Ludwig's cross-examination.
Following the jury's guilty verdict, the trial court sentenced defendant to
a three-year term of imprisonment for the third-degree possession of heroin
conviction; a concurrent seven-year term of imprisonment, with forty-two
months of parole ineligibility pursuant to the Graves Act, for the second-degree
unlawful possession of a weapon conviction; and a concurrent eighteen -month
term for the fourth-degree possession of a defaced weapon conviction, without
a term of parole ineligibility. During the sentencing hearing, defens e counsel
argued that the weapons convictions should merge, but the State objected. 2
Although the court acknowledged the argument, it did not rule on defendant's
application. This appeal followed.
On appeal, defendant raises the following points for our consideration:
2
The attorney who represented defendant at sentencing did not represent him
at trial.
A-4790-16T2
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POINT I
WHEN THE JURY REQUESTED A PLAYBACK OF
THE STATE’S PRIMARY WITNESS, THE REPLAY
OF ONLY HIS DIRECT TESTIMONY DENIED
DEFENDANT A FAIR TRIAL. ADDITIONALLY,
THE FAILURE TO CHARGE THE JURY WITH THE
PLAYBACK INSTRUCTION REQUIRED BY
STATE V. MILLER, 205 N.J. 109 (2011), WAS
HARMFUL ERROR. U.S. CONST. AMEND. XIV;
N.J. CONST. ART., I ¶ 1.
POINT II
AFTER DEFENSE COUNSEL CROSS-EXAMINED
THE STATE’S PRIMARY WITNESS WITH HIS
PRIOR INCONSISTENT STATEMENTS, IT WAS
IMPROPER FOR THE STATE TO INTRODUCE ON
RE-DIRECT UNRE`LATED, INADMISSIBLE
PRIOR CONSISTENT STATEMENTS IN ORDER TO
BOLSTER THE WITNESS’S CREDIBILITY. THIS
IMPROPER BOLSTERING OF THE STATE’S
PRIMARY WITNESS DENIED DEFENDANT A
FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J.
CONST. ART., I ¶ 1.
POINT III
THE TRIAL COURT’S FAILURE TO TAILOR THE
IDENTIFICATION CHARGE TO THE
CIRCUMSTANCES OF THE CASE DENIED
DEFENDANT A FAIR TRIAL. U.S. CONST.
AMEND. XIV; N.J. CONST. ART., ¶¶ 1, 10
(Not Raised Below).
A-4790-16T2
9
POINT IV
THE WEAPONS OFFENSES [CHARGED IN THE
SAME] INDICTMENT . . . SHOULD HAVE
MERGED. U.S. CONST. AMEND.VIII, XIV; N.J.
CONST. ART. I, ¶¶ 1, 12.
II.
A.
Initially, we address defendant's argument that he was denied his right to
a fair trial because the trial court failed to replay Ludwig's cross-examination
testimony. In particular, defendant contends the error was not harmless because
disputed facts supporting his defense of misidentification were elicited by his
counsel's inquiry during cross-examination. Defendant further claims that after
his testimony was replayed, the trial court failed to sua sponte issue a limiting
instruction pursuant to State v. Miller, 205 N.J. 109 (2011).
It is well-settled that the decision whether to read or play back recorded
testimony to the jury is one that lies within the discretion of the trial judge. Id.
at 122; State v. Wilson, 165 N.J. 657, 660 (2000). "However, that broad grant
of discretion is not unbridled." Wilson, 165 N.J. at 660.
In Miller, during deliberations, the jury asked the court to replay a
videotape of the trial testimony of one of the victims. 205 N.J. at 114. The trial
court allowed the victim's direct and cross-examination to be replayed in open
A-4790-16T2
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court. Ibid. The Court held that, when faced with such a request, the trial court
should ordinarily grant the jury's request, allow both direct and cross -
examination to be replayed, and play the video recording in open court. Id. at
122-23.
Nonetheless, the Court reiterated its earlier pronouncement that "[j]urors
should not be required to watch or hear more testimony than they ask for." Id.
at 123 (citing Wilson, 165 N.J. at 661). In Wilson, the Court elaborated:
[W]here a request is clearly circumscribed, the trial
court has no obligation to compel jurors to hear
testimony they have not asked for or to continue a
readback after they have expressly indicated that they
have heard enough. That is so even if one of the parties
registers a request for a further readback.
[ 165 N.J. at 661 (citation omitted).]
Here, the trial court did not improperly discourage the jurors from
pursuing a readback of Ludwig's cross-examination testimony, or coerce them
to reach a verdict they might not otherwise have reached. Indeed, immediately
after the court initially informed the jurors they could hear Ludwig's entire
testimony replayed, defense counsel interjected and requested that the court
inquire whether the jurors wanted to hear any specific testimony replayed. Thus,
there was no error in the court's so inquiring. See id. at 661-62. Moreover, after
direct examination was replayed, the jurors adamantly repeated they had heard
A-4790-16T2
11
enough testimony even though the court repeatedly inquired whether they
wished to hear cross-examination. We therefore discern no abuse of discretion
in the court's decision. 3
Regarding the court's failure to issue a limiting instruction after Ludwig's
testimony was replayed, we are guided by the Court's guidelines set forth in
Miller that "[j]udges should take precautions to prevent juries from placing
undue emphasis on the particular testimony that is replayed." 205 N.J. at 123.
"To that end, at the time the testimony is repeated, judges should instruct jurors
to consider all of the evidence presented and not give undue weight to the
testimony played back." (Miller instruction) Ibid.
Although the Court in Miller appeared to limit its guidelines to "the
playback of video-recorded witness testimony[,]" id. at 114 (emphasis added), a
3
However, we take this opportunity to remind trial courts to instruct jurors to
respond to the courts' inquiries in writing, after the jurors have returned to the
jury room and privately conferred with one another. See Model Jury Charges
(Criminal), "Criminal Final Charge, Part 4 (Deliberations to Jury Questions)"
(rev. Jan. 14, 2013):
If, during your deliberations, you have a question or
feel that you need further assistance or instructions
from me, or wish to have certain testimony read or
played back (or video or audio exhibit played back),
write your question or request on a sheet of paper and
give it to the sheriff's officer who will be standing at
the jury room door who, in turn, will give it to me.
A-4790-16T2
12
model instruction for the playback of "recorded testimony" was approved
shortly after Miller was decided. Model Jury Charges (Criminal), "Playback of
Testimony" (approved Apr. 16, 2012) (emphasis added) (incorporating the
Miller instruction).
Here, however, defendant did not request a Miller instruction. When a
defendant fails to object to an error regarding a jury charge, we review for plain
error. State v. Funderburg, 225 N.J. 66, 79 (2016). "Under that standard, we
disregard any alleged error 'unless it is of such a nature as to have been clearly
capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2).
Nonetheless, in its final jury charge, the trial court instructed the jurors to
give "full and impartial consideration to all of the evidence[,]" to "consider all
evidence presented at trial[,]" and to base their determination "on all of the
evidence presented during the trial." See Miller, 205 N.J. at 126. "We presume
that the jury faithfully followed that instruction." Ibid. Having reviewed the
record, we conclude the trial court's failure to provide the jury with a Miller
instruction at the time Ludwig's testimony was replayed did not constitute any
error.
A-4790-16T2
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B.
We next address defendant's contention that the trial court erred in
permitting the State to "bolster" Ludwig's testimony on redirect examination
with prior consistent statements. See N.J.R.E. 607 and 803(a)(2). We afford
substantial deference to trial judges when evaluating their evidentiary
determinations. State v. Cole, 229 N.J. 430, 449 (2017); State v. Kuropchak,
221 N.J. 368, 385 (2015). Absent a clear error in judgment, we typically uphold
a trial judge's evidentiary rulings. State v. J.A.C., 210 N.J. 281, 295 (2015).
Pursuant to N.J.R.E. 607, "A prior consistent statement shall not be
admitted to support the credibility of a witness except to rebut an express or
implied charge against the witness of recent fabrication or of improper influence
or motive and except as otherwise provided by the law of evidence." A prior
consistent statement is an exception to the hearsay rule pursuant to N.J.R.E.
803(a)(2). Consistent statements are also subject to a balancing test under
N.J.R.E. 403. State v. Darby, 174 N.J. 509, 520 (2002). However, "An attack
on a party's credibility through prior inconsistent statements does not necessarily
give [the party] the right to use a prior consistent statement to buttress the party's
credibility." Palmisano v. Pear, 306 N.J. Super. 395, 403 (App. Div. 1997).
There must be some showing that the testimony was a recent fabrication. Ibid.
A-4790-16T2
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We have long recognized, "A 'charge' of recent fabrication can be effected
through implication by the cross-examiner . . . ." State v. Johnson, 235 N.J.
Super. 547, 555 (1989) (finding prior consistent statements were admissible
where "defense counsel highlighted several inconsistencies in details between
the prior statement and [the witness'] trial testimony"); see also Biunno,
Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 4 on N.J.R.E. 607
(2018) ("Usually, such an allegation is made by the cross-examiner through
implication rather than by a direct accusation of a witness."). As we have
explained,
[I]t is the impression the cross-examiner makes upon
the jury in the heat of the trial rather than what an
appellate court would discern from a coldly analytical
study of the testimony which must control review of the
somewhat discretionary exercise of judgment made by
the trial judge in the matter.
[State v. Moorer, 448 N.J. Super. 94, 109 (App. Div.
2016) (quoting Johnson, 235 N.J. Super. at 555-56).]
Defendant acknowledges "there was a specific attack [by defense counsel]
about the incons[is]tancies between the police report and Ludwig's testimony on
the use of force against defendant." However, he claims the court impermissibly
permitted the State to bolster Ludwig's credibility by asking the officer to
summarize the "relevant or important information" in Alberto's report. See
A-4790-16T2
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Palmisano, 306 N.J. Super. at 403. In the alternative, defendant argues Ludwig's
prior consistent statements, if any, should have been limited to use of force.
While arguably the State's question was overly broad, Ludwig limited his
response to two sentences, generally summarizing the type of information he
relayed to Alberto that Ludwig "felt was important to put in the report to refresh
[his] recollection for trial." Further, the trial court afforded defense counsel
wide latitude in questioning Ludwig about a mistake in use-of-force reports he
had not authored nor seen prior to trial. See N.J.R.E. 611(b). Arguably, defense
counsel "opened the door" to the introduction of consistent statements Ludwig
made to Alberto that were memorialized in Alberto's incident report. See State
v. James, 144 N.J. 538, 554 (1996) ("The doctrine of opening the door allows a
party to elicit otherwise inadmissible evidence when the opposing party has
made unfair prejudicial use of related evidence."). The doctrine also "provides
an adverse party the opportunity to place evidence into its proper context."
Alves v. Rosenberg, 400 N.J. Super. 553, 564 (App. Div. 2008).
Given defense counsel's direct attack on Ludwig's credibility through a
mistake in a use-of-force report that Ludwig did not author nor approve, we
discern no error in permitting Ludwig to summarize the statements he made to
Alberto which were memorialized in Alberto's incident report. Even if it were
A-4790-16T2
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error to permit Ludwig's consistent statements on redirect examination, based
on our review of the record, we conclude any error was harmless, and not clearly
capable of producing an unjust result. R. 2:10-2; State v. R.B., 183 N.J. 308,
328 (2005).
C.
We next address defendant's argument, raised for the first time on appeal,
that the jury instruction on identification was improper. He contends the trial
court failed to properly tailor the instruction pursuant to the factors set forth in
State v. Henderson, 208 N.J. 208, 288-93 (2011) because the instruction omitted
specific references to Ludwig's level of stress and weapon focus. See Model
Jury Charges (Criminal), "Identification: Out-of-Court Identification Only"
(rev. July. 19, 2012) (listing stress and weapon focus as two estimator variables
the jury may consider in determining a witness's opportunity to view the
defendant and the witness's degree of attention).
When a defendant fails to object to a jury charge at trial, we review for
plain error, and "disregard any alleged error 'unless it is of such a nature as to
have been clearly capable of producing an unjust result.'" Funderburg, 225 N.J.
at 79 (quoting R. 2:10-2). Plain error, in the context of a jury charge, is "[l]egal
impropriety in the charge prejudicially affecting the substantial rights of the
A-4790-16T2
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defendant and sufficiently grievous to justify notice by the reviewing court and
to convince the court that of itself the error possessed a clear capacity to bring
about an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014) (alteration
in original) (quoting State v. Adams, 194 N.J. 186, 207 (2008)).
Of course, in reviewing any claim of error relating to a jury charge, "[t]he
charge must be read as a whole in determining whether there was any error[,]"
State v. Torres, 183 N.J. 554, 564 (2005), and the effect of any error must be
considered "in light 'of the overall strength of the State's case.'" State v. Walker,
203 N.J. 73, 90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).
However, defense counsel's failure to object to jury instructions not only "gives
rise to a presumption that he did not view [the charge] as prejudicial to his
client's case[,]" State v. McGraw, 129 N.J. 68, 80 (1992), but also is "considered
a waiver to object to the instruction on appeal." State v. Maloney, 216 N.J. 91,
104 (2013).
Defendant's newly-minted argument is belied by the record. Neither the
Model Jury Charge nor Henderson, on which it is based, require the trial court
to cite examples in the trial testimony. Moreover, the record is devoid of any
evidence that Ludwig's identification of defendant was "impermissibly
suggestive." Henderson, 208 N.J. at 238. Indeed, defendant was apprehended
A-4790-16T2
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at the scene and Ludwig never lost sight of him. See also State v. Pressley, 232 N.J. 587, 591 (2018) (quoting Henderson, 208 N.J. at 238) (considering, without
deciding, whether "identifications by law enforcement officers should be
examined to determine if an 'impermissibly suggestive' identification procedure
was used and to assess whether a defendant has proven 'a very substantial
likelihood of irreparable misidentification.'"). We conclude the trial court's
instruction on identification was appropriate.
D.
Finally, we next consider defendant's contention that the court should have
merged the weapons convictions at sentencing. "At its core, merger's substantial
purpose 'is to avoid double punishment for a single wrongdoing.'" State v.
Romero, 191 N.J. 59, 80 (2007) (quoting State v. Diaz, 144 N.J. 628, 637
(1996)); see also State v. Miller, 108 N.J. 112, 116 (1987) (merger stems from
the well-established principle that an accused who has committed only one
offense "cannot be punished as if for two"). "[M]erger implicates a defendant's
substantive constitutional rights." State v. Cole, 120 N.J. 321, 326 (1990).
In deciding whether to merge convictions, the court must first ascertain
"whether the legislature has in fact undertaken to create separate offenses; and,
if so, it must then be determined whether those separate offenses have been
A-4790-16T2
19
established under the proofs." State v. Valentine, 69 N.J. 205, 209 (1976); see
also State v. Allison, 208 N.J. Super. 9, 22-23 (App. Div. 1985). We must "focus
on the elements of the crime, the Legislature's intent in enacting the statutes, and
the specific facts of each case." State v. Dillihay, 127 N.J. 42, 47 (1992); see
also State v. Bull, 268 N.J. Super. 504, 513 (App. Div. 1993). We also consider
"the time and place of each purported violation." State v. Davis, 68 N.J. 69, 81
(1975). Where the offenses are in fact indistinguishable, the resulting
convictions must be merged. State v. Best, 70 N.J. 56, 61 (1976).
Further, N.J.S.A. 2C:1-8 provides for merger of offenses to avoid
impermissible multiple convictions for the same conduct and sets forth a series
of factors to guide a court in determining whether to bar multiple convictions
for conduct that constitutes more than one offense. In particular, N.J.S.A. 2C:1-
8(a)(1) provides that a defendant may not be convicted of multiple offenses if
"[o]ne offense is included in the other." An offense is included in the other when
"[i]t is established by proof of the same or less than all the facts required to
establish the commission of the [other] offense." N.J.S.A. 2C:1-8(d)(1); see also
State v. Mirault, 92 N.J. 492, 502-03 (1983).
Applying these principles to the facts of this particular case, both of the
weapons offenses prohibit possession of the same firearm under certain
A-4790-16T2
20
conditions. In particular, defendant unlawfully possessed the handgun without
a permit, in violation of N.J.S.A. 2C:39-5(b), and that same handgun was
defaced, in violation of N.J.S.A. 2C:39-3(d). Further, the convictions stem from
a single incident. See Davis, 68 N.J. at 81. Neither statute contains an anti-
merger provision. Compare, e.g., N.J.S.A. 2C:35-7 (distributing a controlled
dangerous substance within 1000 feet of school property) with N.J.S.A. 2C:35-
6 (employing a juvenile in a drug distribution scheme). We are therefore
convinced the two weapons convictions should merge for sentencing purposes.
Accordingly defendant's sentence on the defaced weapon conviction is
vacated and remanded to the trial court for merger with the unlawful possession
of a weapon conviction. The judgment of conviction shall be amended to reflect
merger of those convictions, and grading of the original defaced weapon charge
as fourth-degree.4
To the extent not addressed, defendant's remaining arguments lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e) (2).
Affirmed in part, vacated and remanded in part. We do not retain
jurisdiction.
4
Although at sentencing, counsel and the court agreed possession of a defaced
weapon is a fourth-degree offense, the judgment of conviction inaccurately
reflects the grade for that offense as second-degree.
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