Opinion
DOCKET NO. A-5952-13T2
04-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID CHENEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-01-0143. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his convictions and sentence for third-degree aggravated assault and weapons offenses. The charges arose from his attack upon his former employer, R.J., with a "come- along" tool, ripping R.J.'s ear in half and causing other lacerations and whip marks on R.J. We affirm defendant's convictions. However, we also conclude that there should have been a merger of defendant's convictions for aggravated assault and possession of a weapon for an unlawful purpose. Therefore, we remand for correction of the Judgment of Conviction.
A come-along is a ratchet-lever winch used to pull objects (e.g., to remove cars from ditches). The come-along used in this case was steel and had a cable with a cast iron hook at the end.
Defendant's challenge to his convictions and sentence is based upon the following arguments:
POINT I
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE INCOMPLETE AND PREJUDICIAL INSTRUCTION TO THE JURORS ON THE LAW OF AGGRAVATED ASSAULT CAUSING SIGNIFICANT BODILY INJURY. (NOT RAISED BELOW).
POINT II
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S REFUSAL TO INSTRUCT ON THE DEFENSE OF OTHERS AND/OR HIS HOME.
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY THE TRIAL COURT'S INSTRUCTION TO CONVICT IF THE STATE PROVED THE ELEMENTS OF THE OFFENSE, EFFECTIVELY PRECLUDING A CONSIDERATION OF SELF-DEFENSE. (NOT RAISED BELOW).
POINT IV
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY THE ERRONEOUS, CONFUSING, CONTRADICTORY, AND HIGHLY PREJUDICIAL INSTRUCTION OF THE LAW OF ATTEMPT. (NOT RAISED BELOW).
POINT V
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY PROSECUTORIAL MISCONDUCT DURING SUMMATION. (NOT RAISED BELOW).
POINT VI
THE STATE IMPROPERLY USED SPECIFIC INSTANCES OF LAWFUL CONDUCT TO BOLSTER THE CREDIBILITY OF ITS WITNESS. (NOT RAISED BELOW).
POINT VII
THE CONVICTION FOR POSSESSION OF A WEAPON WITH THE INTENT TO USE UNLAWFULLY SHOULD MERGE WITH THE CONVICTION FOR AGGRAVATED ASSAULT. (NOT RAISED BELOW).
The arguments presented by defendant in Points I, III, IV, V, VI and VII are raised for the first time on appeal and are therefore subject to the plain error standard of review. R. 2:10-2. We review the argument in light of the record to determine whether the alleged errors are "clearly capable of producing an unjust result." Ibid. "The possibility of an unjust result must be sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Williams, 168 N.J. 323, 344 (2001) (citation omitted). Our review of the record here leads to the ineluctable conclusion that the errors alleged in Points I, III, IV, V and VI fail to meet this standard. However, we find merit in defendant's argument that his convictions for possession of a weapon for an unlawful purpose and aggravated assault should merge.
I.
To provide context for our analysis, we briefly review the evidence.
R.J. hired defendant as an independent contractor for his property management company. R.J. loaned defendant landscaping equipment because defendant was not able to procure his own. On Saturday, July 2, 2011, defendant called R.J. to say that he was not satisfied with the amount of money he was making and wanted to end the working relationship. R.J. asked defendant to send an invoice for the work defendant completed the previous week and advised he needed to retrieve the equipment he had loaned to defendant. That equipment consisted of two lawn mowers, a weed-whacker, leaf blower and two GPS systems.
When defendant failed to send R.J. the invoice, R.J. forwarded defendant a list of the completed jobs and a breakdown of the money he was due. Defendant called R.J. in response, "ranting and raving." He claimed R.J. "owe[d] him a lot more money" than what was provided in the statement and said "he was going to kill [R.J.] if he didn't get paid all his money." R.J. defended the accuracy of the statement and informed defendant he would come to defendant's house in Matawan after he completed the job he was working on to pick up the lawn equipment. Defendant continued to threaten R.J., "yelling I'm F'g going to kill you, mother fucker." R.J. retorted, "I'm coming to your house, you fucking scumbag."
Defendant called R.J. a second time, again "ranting and raving," and asked "when [was] [he] going to fucking come down." R.J. again advised defendant that he would be coming down to pick up the equipment after he and his employee, K.A., completed a project.
When R.J. and K.A. arrived at defendant's residence, R.J. told K.A. he would talk to defendant and instructed him to stay in the van. Defendant was "standing on the stairs" in front of his house. He grabbed the come-along, and "came running off the porch," "yelling" and "in a rage." R.J. was not holding anything. Defendant started hitting the van with the come-along.
Defendant was "ranting like a mad man" and "start[ed] swinging [the come-along] over his head, saying . . . I'm going to kill you, M-Fer, you're going to die, and this is going to be the worst day of your life, you're going to jail." R.J. testified he "started backing off" as defendant came towards him. He stated: "I didn't have anything in my hands. I didn't have any weapons. I didn't think it was going to be an altercation. I thought it was just going to be get [sic] my equipment back."
Defendant "charg[ed] at" R.J. with the hook of the come-along over his head, causing R.J. to "back[] up all the way across the road" and "on[to] the sidewalk on the opposite side of the street." R.J. testified he "just tried to keep distance away from [defendant]," while defendant continued to approach R.J. "yelling and screaming": "You're going to die. You're going to die. You owe me money. I'm going to kill you, motherfucker."
During the course of the assault, defendant and R.J. moved to the middle of the street. R.J. put up his hands to defend himself, and defendant struck R.J. with the come-along "numerous times," including on his head. When R.J. "saw an opening," he ran away from defendant and towards the van. Defendant followed and "smashed out" the van's back window and then the driver's side window.
While defendant was hitting the van, R.J. was able to unlock a toolbox that was between the driver and passenger seats and grab a hammer, which he attempted to use to get defendant to back off. However, defendant continued "swinging" the come-along and "yelling like a mad man." The altercation again moved into the middle of the street and, again, when R.J. had an opportunity to retreat to the van, he did so. R.J. did not drive away because he did not think he had enough time to do so.
R.J. started throwing tools at defendant trying to get him to back up, but defendant hit R.J. "upside the head" with the come-along. After being hit, R.J. moved "in close to a bear hug," trying to prevent defendant from hitting him with the hook of the come-along again. As they were in this position, R.J. started hitting defendant in the back of the head with a pair of pliers.
The fight ended when police and K.R., a neighbor of defendant's, responded to the scene. Upon their arrival, both the officer and K.R. observed defendant and R.J. engaged in what appeared to be a mutual fight. However, the testimony of K.A.; defendant's live-in girlfriend at the time, L.-A.M.; and a neighbor, R.O., corroborated that defendant initiated the altercation, running from his porch with the come-along. K.A. and R.O. testified they observed defendant striking R.J. L.-A.M. also testified that defendant had been very angry throughout the afternoon regarding his dispute with R.J. and instructed her to remove their son from the house because "it wasn't going to be pretty" when R.J. arrived and he did not want their son "to see what was gonna happen."
R.J. was taken to the hospital. A plastic surgeon re-attached R.J.'s ear, re-aligned the cartilage, closed skin lacerations on the front and back of the ear and scalp, and stitched up his skull. Defendant refused to go to the hospital and was placed under arrest.
Defendant did not testify at trial. His counsel argued that defendant acted in self-defense.
II.
The arguments raised in Points I, II, III and IV allege errors in the instructions to the jury. Aside from Point II, each of these arguments allege the court committed plain error.
A.
"[A]ppropriate and proper charges to a jury are essential for a fair trial." State v. Collier, 90 N.J. 117, 122 (1982) (citation omitted). When a "defendant did not object to the jury instructions at trial, [the reviewing court] must apply the plain error standard." State v. Burns, 192 N.J. 312, 341 (2007); see R. 2:10-2.
In the context of a jury charge, plain error requires demonstration of [l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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.Although an "error in a jury instruction that is crucial to the jury's deliberations on the guilt of a criminal defendant is a poor candidate[] for rehabilitation under the plain error theory," ibid. (alteration in original) (citation omitted), any alleged error is to be considered "in light of the totality of the entire charge" and "the overall strength of the State's case." Ibid. (citations omitted). The propriety of the charge is based on "how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary . . . jurors understand the instructions as a whole." State v. Savage, 172 N.J. 374, 387 (2002) (alteration in original) (citation omitted).
[Burns, supra, 192 N.J. at 341 (alteration in original) (citation omitted).]
The first allegation of plain error regarding the instructions is that the court failed to properly instruct the jury on causation. (Point I). Defendant concedes the trial court instructed the jury on the law of aggravated assault causing significant bodily injury, N.J.S.A. 2C:12-1(b)(7). Because the defense here was self-defense and causation was not an issue, this argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
In Point III, defendant contends the jury instruction on aggravated assault was "confusing and misleading" because it allowed the jury to find him guilty before it considered his claim of self-defense.
The court first charged the jury on aggravated assault and its lesser-included offenses. As to each potential charge, the court instructed the jury: "If you find that the State has proven each element beyond a reasonable doubt, then you must find the defendant guilty." The court then charged the jury on self-defense:
The defendant contends that if the State proves that he used or threatened to use force upon another person, that such force was justifiably used for his self protection [sic].
. . . .
The State has the burden to prove to you beyond a reasonable doubt that the defense of self defense [sic] is untrue. This defense only applies if all of the conditions or elements previously described exist. The defense must be rejected if the State disproves any of the conditions beyond a reasonable doubt.
. . . .
The burden of proof is upon the State to prove beyond a reasonable doubt that the defendant knew he could have retreated to safety. If the State carries its burden, then you must [dis]allow the defense. If the State does not satisfy the burden, and you do have a reasonable doubt, then it must be resolved in favor of the defendant and you must allow the claim of self defense [sic] and acquit the defendant.
[(Emphasis added).]
Defendant argues that these instructions "effectively precluded jurors from even considering self-defense" because the self-defense charge "contradicted the court's earlier instruction to find the defendant guilty if it found the State proved all the elements of the aggravated assault offense." Defendant contends: "If the jurors followed the trial court's instruction on the law of aggravated assault and found the State proved the elements of the offense, the jury was required to find the defendant guilty based on this instruction." This argument is unpersuasive.
Self-defense is "an affirmative defense that excuses conduct that is otherwise unlawful." Williams, supra, 168 N.J. at 344 (citation omitted). Our Supreme Court has stated, "Logically, the jury first [must] consider whether [the] defendant was guilty before considering whether he would be exculpated." State v. Delibero, 149 N.J. 90, 105 (1997). Thus, the court did not err in following the "logical" order of instructing on the substantive offense first and then charging the jury on the affirmative defense.
Defendant also alleges the trial court committed plain error in its charge on attempt. Defendant concedes the court correctly charged the jury that proof of an attempt to cause significant injury required "a substantial step in the course of conduct planned to culminate in [the] commission of the crime. . . . [a step] that is strongly corroborative of the defendant's criminal purpose." However, he contends the court's subsequent statement that attempt could be found if defendant "did anything with the purpose of causing significant bodily injury without further conduct on his part" was confusing and erroneous.
Because the evidence here firmly establishes that defendant's conduct did in fact "culminate in the commission of the crime" charged, his argument regarding a charge on attempt lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).
B.
In Point II, defendant argues the trial court erred in refusing to provide the jury with a charge on defense of others and defense of property. This argument lacks merit.
"A trial court must charge the jury on an affirmative defense if there is a rational basis in the evidence for the charge." State v. Bass, ___ N.J. ___, ___ (2016) (slip op. at 57). "[W]here a defendant fails to point to any facts that provide a rational basis from which a jury could infer that his actions were justified, the trial court may properly decline to instruct the jury as to that defense of justification." State v. Fierro, 438 N.J. Super. 517, 527 (App. Div. 2015).
Defendant contends that there was adequate evidence to justify such an instruction here. His attorney argued to the trial judge that defendant considered R.J.'s "warn[ing]" he was coming to his house to be a threat and that his instructions to L.-A.M. to leave the house with their son and, later, to go upstairs when they came home earlier than he had expected, reflected his reasonable belief his home and family were in danger.
N.J.S.A. 2C:3-5(a) provides that "the use of force upon or toward the person of another is justifiable to protect a third person" under the following circumstances:
(1) The actor would be justified under [N.J.S.A. ] 2C:3-4 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and
(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
(3) The actor reasonably believes that his intervention is necessary for the protection of such other person.
"[T]he use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person . . . ." N.J.S.A. 2C:3-4(a). --------
N.J.S.A. 2C:3-6 provides the circumstances under which force may be used "upon or toward the person of another" to protect one's premises. To justify the use of such force, the actor must reasonably believe that the force is "necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by such other person in or upon such premises." N.J.S.A. 2C:3-6(a). The evidence did not provide a rational basis for either defense to be presented to the jury.
For defense of another to apply, the defendant must have "an actual, honest, and reasonable belief . . . of the necessity of using force." State v. Josephs, 174 N.J. 44, 101 (2002), superseded by statute on other grounds as noted by, State v. Troxell, 434 N.J. Super. 502, 512 n.4 (App. Div. 2014). The jury must use an objective standard to determine "what a reasonable person in the defendant's position would have done at the time the force was used." Ibid.
Although the State bears the "burden of disproving the justification of defense of another," there "must be enough evidence to support its application." State v. Martinez, 229 N.J. Super. 593, 600 (App. Div. 1989). The trial court must instruct on defense of another if there is a rational basis in the record "upon which the jury could find that [the] defendant acted in the defense of another." Ibid.; see Josephs, supra, 174 N.J. at 102.
While it is true that defendant and R.J. had a heated argument about money earlier in the day, there is no evidence that R.J. threatened defendant, the other occupants of his residence or defendant's property. All the witnesses who observed the inception of the altercation testified that defendant was the aggressor, rushing from his porch with weapon in hand to vandalize R.J.'s van and attack the unarmed R.J. L.-A.M. and her son were out of harm's way in the house and there was no evidence that R.J. threatened to injure them. The jury's verdict reflected a rejection of defendant's claim that he acted in self-defense; there is no reasonable basis to conclude the jury would have been more receptive to an assertion that defendant acted in defense of others or his property.
III.
In Points V and VI, defendant alleges comments made by the prosecutor in his summation constituted plain error. We disagree.
Where there is no objection to the prosecutor's statements at trial, defendant cannot prevail without showing plain error — error clearly capable of prejudicing defendant's right to a fair trial. State v. Timmendequas, 161 N.J. 515, 576-77 (1999). A failure to object is relevant to the fair trial standard in two ways. It "indicates that defense counsel did not believe the remarks were prejudicial at the time," and it "deprives the court of the opportunity" to address and cure the alleged error caused by the prosecutor's comments. Id. at 576.
A.
In Point V, defendant cites the prosecutor's statement that defendant "claims he is the victim here . . . . He's not sitting in that seat because he is the victim." He argues that this comment suggested to the jury that the grand jury had performed a screening process and that if defendant had not committed the crimes charged, he would not be on trial.
We do not disagree it is improper for a prosecutor to argue that the fact a defendant has been indicted implies he is guilty of the crime charged. See State v. Green, 313 N.J. Super. 385, 391 (App. Div. 1998). However, the prosecutor here did not articulate such an argument. The reference to defendant "sitting in that seat" was fleeting and was not coupled with any reference to the grand jury process. To assess the potential prejudice from the comments complained of, we look at the context of those comments within the prosecutor's summation:
He claims he's the victim here. Is this case really about self defense [sic]? Is it really about some guy who felt the need to protect himself by grabbing some weapons, some tools to fight somebody else off? Is that what this case is about? Absolutely. But that's not your victim right here. He's not sitting in that seat because he's a victim. [Defendant] wasn't the victim on July 5, 2011, when he pre-armed himself with a come-along. He wasn't a victim when he ran off that porch with a come-along. He wasn't a victim when he ran off the porch with a come-along [sic] when he bashed it into the rear window of a van. He wasn't the victim when he took that come-along again and bashed it into the driver's side window of the van. He wasn't even the victim when he took that come-along and bashed it alongside the victim's head over and over again. He's not the victim because he was the cause of the occurrence. He wasn't the victim because he was the defendant, and that's why he's seated here today.
Although we do not condone the comments challenged, we note that these comments were only a minor part of an argument that asked the jury to reject defendant's claim of self-defense and focused primarily on the evidence refuting that defense.
Prosecutors are given "considerable leeway in closing arguments." State v. R.B., 183 N.J. 308, 332 (2005) (citation omitted). However, because their first duty is to "see that justice is done," State v. Smith, 212 N.J. 365, 403 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013), prosecutors' comments in summation are largely limited to the evidence revealed at trial and "any reasonable inferences supported by the proofs." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). In reviewing the evidence that supported a rejection of defendant's self-defense argument, the prosecutor was "entitled to sum up the State's case graphically and forcefully." State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000).
When prosecutorial misconduct is being raised for the first time on appeal, the reviewing court need only be concerned with whether "the remarks, if improper, substantially prejudiced the defendant['s] fundamental right to have the jury fairly evaluate the merits of [his] defense, and thus had a clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960). To warrant reversal of a conviction, it must be evident that the prosecutor's conduct was "clearly and unmistakably improper," and "so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (citation omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
The challenged comments here were isolated, embedded in an argument that properly — and more persuasively — focused on the evidence that refuted defendant's claim of self-defense. Given their fleeting nature, it is entirely reasonable that trial counsel did not find them objectionable within that context. Any prejudice from the comments could have been effectively addressed by a curative instruction if there had been an objection. The failure to object deprived the court of the opportunity to do so. In the final analysis, the challenged comments were not "so egregious as to deprive defendant of a fair trial." Id. at 438.
B.
Defendant also challenges statements made by the prosecutor regarding K.A.'s credibility as constituting plain error. This argument lacks merit.
During trial, the defense attacked K.A.'s credibility, questioning him extensively on his prior criminal record during cross-examination. Defense counsel further challenged the truthfulness of K.A.'s testimony in closing argument:
Now, [K.A.], [R.J.'s] employee, he stayed in the van because he is a convicted felon eight times over, and he had just gotten out of prison the year before the incident, and he
obviously didn't want to go back. And he knew there was going to be trouble. And he told you he knew there was going to be trouble because [R.J.] told him so, and [R.J.] told us the same thing.
[(Emphasis added).]
In response, the prosecutor argued the following, the underlined portions of which defendant specifically challenges:
[K.A.] told you that one of the punishments of his crime was he lost his license, he couldn't drive for six months. He got out of jail and he needs a job that required a lot of travel and he needed that job at that point.
So [K.A.] could have easily ignored a likely suspension and drive. Who would have known? Unless he got pulled over, no one would have known that he was ignoring that punishment. But did he ignore that? No. He abided by that punishment. He knew what he did was wrong previously. He stuck by the punishment he received and never drove. He had the victim pick him up for work sometimes. Even the defendant picked him up for work. Does that appear to be a person who's a liar?
[(Emphasis added).]
The challenged comments here were made in direct response to defense counsel's attack on K.A.'s credibility. "A prosecutor is not forced to idly sit as a defense attorney attacks the credibility of the State's witnesses; a response is permitted." State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000); see also State v. Vasquez, 374 N.J. Super. 252, 260-62 (App. Div. 2005) (holding that although prosecutor's comment that police had no motive to lie was improper, the error was not clearly capable of producing an unjust result because it was made in response to defense counsel's remarks suggesting the police were lying); State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991). The prosecutor may argue a witness is credible, provided the prosecutor does not insert personal views as to the witness' credibility or refer to matters outside the record to support that testimony. State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997).
Here, the prosecutor did not inject any personal opinion or stray from the evidence in arguing the jury should reject defendant's attack on K.A.'s credibility. The facts relied upon to support the argument were all in evidence before the jury. We discern no error here, let alone one that is "so egregious as to deprive defendant of a fair trial." Wakefield, supra, 190 N.J. at 437-38 (citation omitted).
IV.
Defendant was convicted of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), (count two); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), (count three). At sentencing, the court merged count two into count three. On counts one and three, defendant was sentenced to concurrent four-year terms of probation conditioned upon serving 249 days in the county jail; the time served by defendant prior to his conviction. Defendant argues that, under the facts of this case, count three should have merged with count one. We agree.
In State v. Diaz, 144 N.J. 628 (1996), our Supreme Court reviewed the principles applicable to a determination whether a conviction for possession of a weapon for an unlawful purpose should merge with a substantive offense. The Court instructed, "[w]hen the only unlawful purpose in possessing the [weapon] is to use it to commit the substantive offense, merger is required." Id. at 636. In contrast, "[m]erger is not required when the evidence submitted to the jury is sufficient to permit it to determine that [the] defendant possessed the [weapon] for an unlawful purpose independent of the greater offense." Id. at 632. The jury need not make a specific finding that the weapon was possessed for a broader purpose than commission of the substantive offense. Id. at 638. However, the evidence must support a finding of a broader purpose to use the weapon unlawfully and the jury charge "does not include an instruction that the unlawful purpose is the same as using the weapon to commit the substantive offense." Id. at 639.
The evidence in this case was that defendant kept his weapon, the come-along, on the porch in anticipation of R.J.'s arrival and used it exclusively for the purpose of assaulting R.J. There is no evidence of any unlawful purpose for his possession. Therefore, merger of counts one and three is required pursuant to Diaz, id. at 636, and a remand is necessary to correct the Judgment of Conviction to reflect a merger of these counts.
We affirm defendant's convictions and remand for a correction of his sentence. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION