STATE OF NEW JERSEY VS. AZIKWA RUSTIN STATE OF NEW JERSEY VS. ALQUAN HARRIS STATE OF NEW JERSEY VS. JOSEPH N. WRIGHT (18-01-0031, 18-01-0032, AND 18-01-0033, SOMERSET COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2241-18T2
A-2270-18T2
A-2311-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AZIKWA RUSTIN,
Defendant-Appellant.
__________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALQUAN HARRIS,
Defendant-Appellant.
__________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH N. WRIGHT, a/k/a
NORMAN BLACK, and
CURTIS GORDON,
Defendant-Appellant.
__________________________
Submitted February 13, 2020 – Decided March 11, 2020
Before Judges Nugent and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment Nos. 18-01-
0031, 18-01-0032 and 18-01-0033.
Joseph E. Krakora, Public Defender, attorney for
appellant Azikwa Rustin (Stefan Van Jura, Assistant
Deputy Public Defender, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant Alquan Harris (Michele A. Adubato,
Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant Joseph N. Wright (Frank M. Gennaro,
Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Steven A. Yomtov, Deputy Attorney
General, of counsel and on the briefs).
PER CURIAM
Defendants Azikwa Rustin, Alquan Harris, and Joseph N. Wright appeal
from the September 28, 2018 order of the Law Division denying their motion to
A-2241-18T2
2
suppress evidence for want of standing. After denial of their motion, defendants
entered guilty pleas to several charges arising from their participation in the
shooting of a motorist. We affirm the September 28, 2018 order.
Wright also appeals from his December 20, 2018 judgment of conviction
and sentence. He argues he was convicted of multiplicitous charges, the trial
court improperly merged several counts, and he received an illegal and excessive
sentence. We remand the Wright appeal for resentencing. Because some of our
holdings with respect to Wright's sentencing are equally applicable to Rustin
and Harris, we remand those matters for resentencing, even though those
defendants did not appeal their sentences.
I.
We derive the following facts from the record. On October 26, 2017,
police officers responded to reports of gunshots in downtown Somerville. At
the scene, the officers found shell casings, tire marks, and damage to a wooden
staircase attached to a building.
The officers noticed surveillance cameras around the exterior of a private
residence in the area of the shooting. The homeowner, Gregory Jewitt, told
officers he owned the surveillance system. He initially was uncooperative and
said the cameras had not been recording at the time of the incident. According
A-2241-18T2
3
to the State, Jewitt eventually agreed to allow officers to copy the video
recordings without a warrant.
The video recordings depict the shooting. Defendants arrive in the area
in a vehicle driven by Ishmael Proctor, a codefendant not involved in this appeal.
They exit the vehicle. Rustin is armed with a semiautomatic handgun. He walks
with Wright to a second parked car.
Rustin conceals his handgun in his sweatshirt and walks up the street
toward a third vehicle. He draws his handgun and begins firing at the vehicle,
causing the driver to lose control and crash into the side of a building. Rustin
runs toward the crashed vehicle and continues firing, striking the driver. Wright
pulls a handgun out of the parked vehicle. He runs toward Rustin while shooting
at the car under Rustin's fire. One of the rounds fired by Wright hits and injures
Rustin. Wright returns to the parked vehicle and puts an object, presumably his
gun, inside. Rustin gives his handgun to Harris.
A grand jury indicted defendants in a single indictment, charging them
with: first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a)(1) and
N.J.S.A. 2C:5-2(a)(1) to (2); second-degree conspiracy to possess a firearm for
an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) and N.J.S.A. 2C:5-2(a)(1) to (2);
second-degree conspiracy to possess a handgun, N.J.S.A. 2C:39-5(b)(1) and
A-2241-18T2
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N.J.S.A. 2C:5-2(a)(1) to (2); first-degree attempted murder, N.J.S.A. 2C:11-
3(a)(1) and N.J.S.A. 2C:5-1(a)(2) to (3); second-degree possession of a 9mm
Keltec handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); second-degree
unlawful possession of a 9mm Keltec handgun, N.J.S.A. 2C:39-5(b)(1); second-
degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-
4(a)(1); and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b)(1).
Rustin was separately indicted on second-degree certain persons not to
have weapons, a 9mm Keltec handgun, N.J.S.A. 2C:39-7(b)(1), due to prior
convictions, and second-degree certain persons not to have weapons, a handgun,
N.J.S.A. 2C:39-7(b)(1), due to prior convictions.
Wright was also separately indicted on first-degree unlawful possession
of a 9mm Keltec handgun due to a previous robbery conviction, N.J.S.A. 2C:39-
5(b)(1) and N.J.S.A. 2C:39-5(j); first-degree unlawful possession of a handgun
due to a previous robbery conviction, N.J.S.A. 2C:39-5(b)(1) and N.J.S.A.
2C:39-5(j); second-degree certain persons not to have weapons, a 9mm Keltec
handgun, due to prior convictions, N.J.S.A. 2C:39-7(b)(1); and second-degree
certain persons not to have weapons, a handgun, due to prior convictions,
N.J.S.A. 2C:39-7(b)(1).
A-2241-18T2
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Defendants moved to suppress the video recordings. They argued Jewitt
did not give valid consent to the warrantless search that resulted in police
obtaining the evidence.
On September 28, 2018, the trial court entered an order denying
defendants' motion. In a written decision, the court found an evidentiary hearing
was not necessary because the material facts needed to decide whether
defendants had standing to challenge the seizure of the video recordings were
not in dispute. The court rejected defendants' argument they had a possessory
interest sufficient to confer standing. As the court explained, "[t]he video was
seized from the home of Mr. Jewitt, a third party. The video was taken by
surveillance equipment owned by Mr. Jewitt. Therefore, none of the
[d]efendants have a possessory or proprietary interest in the video, the property
seized, [or] the place searched."
In addition, the court concluded defendants did not have a participatory
interest in the seized evidence because they did not have some culpable role, as
principal, conspirator, or accomplice in criminal activity that generated the
evidence. The court held that while defendants' criminal acts were captured on
the recordings, that alone was insufficient to confer standing absent a connection
with the place searched and the items seized.
A-2241-18T2
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Finally, the trial court rejected defendants' argument they had automatic
standing to challenge the seizure of the video recordings because they had been
charged with possessory crimes. The court noted defendants were charged with
possession of weapons. However, "the evidence seized was not a gun, but a
video. As the [d]efendants were not charged with . . . possession of the seized
video, they cannot gain automatic standing." 1 Having determined defendants
lacked standing to challenge seizure of the video recordings, the court did not
decide whether Jewitt's consent was valid.
Following denial of the motion to suppress, defendants entered guilty
pleas to all of the counts of the joint indictment, except the two first-degree
charges were amended to second-degree conspiracy to commit aggravated
assault, N.J.S.A. 2C:12-1(b)(1) and N.J.S.A. 2C:5-2(a)(1); and second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1). Rustin and Wright also entered
guilty pleas to the counts in the individual indictments issued against them.
1
Defendants did not argue before the trial court the seizure of the video
recordings violated the Fourth Amendment. The trial court, therefore, did not
determine whether defendants had standing under the federal constitution. See
State v. Alston, 88 N.J. 211, 229 (1981) ("We . . . caution . . . trial courts that
when ruling on suppression motions in which standing may be in issue under
federal and state claims, the court should make explicit findings and legal
conclusions as to standing under both the Federal and State Constitutions.")
A-2241-18T2
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The trial court sentenced Rustin consistent with his plea agreement to an
eight-year prison term, with an eighty-five-percent period of parole ineligibility
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for second-
degree aggravated assault. On each of the remaining counts of the joint
indictment, the court sentenced Rustin to a five-year term of incarceration to run
concurrently with each other and with the sentence on second-degree aggravated
assault.2 The court also sentenced Rustin to two concurrent five-year terms of
imprisonment on the certain persons convictions in the individual indictment to
run concurrent to his sentence on the convictions in the joint indictment.
The trial court sentenced Harris consistent with his plea agreement to a
five-year term of imprisonment, with an eighty-five-percent period of parole
ineligibility pursuant to NERA for second-degree aggravated assault. The court
merged the convictions on the remaining counts of the joint indictment with the
second-degree aggravated assault conviction.3
2
Although the trial court's oral opinion does not refer to merger, the December
18, 2018 judgment of conviction merges all counts of the joint indictment with
the conviction of second-degree aggravated assault. The judgment of conviction
does not include sentences on any count merged with the conviction of second -
degree aggravated assault.
3
In its oral opinion, the trial court imposed individual sentences on each of the
convictions it subsequently merged with Harris's conviction of second-degree
A-2241-18T2
8
The trial court sentenced Wright consistent with his plea agreement to an
eight-year term of imprisonment, with an eighty-five-percent period of parole
ineligibility pursuant to NERA for second-degree aggravated assault. On each
of the remaining counts of the joint indictment, the court sentenced Wright to a
five-year prison term, with all sentences to run concurrent to each other and to
the sentence imposed for second-degree aggravated assault. The court also
merged those counts with the conviction for second-degree aggravated assault.4
Under the separate indictment, on Count One the court sentenced Wright
to a twelve-year term of incarceration with a five-year period of parole
ineligibility for first-degree unlawful possession of the 9mm Keltec. The court
imposed the same sentence for first-degree unlawful possession of the handgun
to run concurrently with the sentence on Count One. For each of the second-
degree certain persons convictions, the court imposed a five-year term of
incarceration to run concurrent to the sentence on Count One. The sentences on
aggravated assault. The judgment of conviction, however, includes a sentence
only on the conviction for second-degree aggravated assault.
4
Wright's December 20, 2018 judgment of conviction imposes an eight -year
term of incarceration on the conviction of second-degree aggravated assault, and
merges the remaining counts of the joint indictment with that conviction without
imposing a separate sentence on the remaining convictions.
A-2241-18T2
9
each of the counts in the individual indictment run concurrently with the
sentence imposed on the counts of the joint indictment.
These appeals followed. Rustin makes the following argument for our
consideration:
THE MATTER SHOULD BE REMANDED FOR AN
EVIDENTIARY HEARING ON THE LAWFULNESS
OF THE SEIZURE OF THE SURVEILLANCE
VIDEO BECAUSE THE TRIAL COURT
ERRONEOUSLY FAILED TO REACH THAT ISSUE
WHEN IT INCORRECTLY FOUND DEFENDANT
LACKED STANDING. U.S. Const. amend. IV and
XIV; N.J. Const. art. 1, par. 7.
Harris makes the following argument for our consideration:
THE TRIAL COURT'S DENIAL OF DEFENDANT'S
MOTION TO SUPPRESS WITHOUT AN
EVIDENTIARY HEARING ON THE GROUNDS
THAT DEFENDANT LACKED STANDING WAS
ERRONEOUS.
Wright makes the following arguments for our consideration:
POINT ONE
THE TRIAL COURT ERRED BY DENYING
DEFENDANT'S MOTION TO SUPPRESS THE
ADMISSION OF THE SURVEILLANCE
RECORDING EVIDENCE WITHOUT FIRST
HEARING FROM DEFENSE WITNESS GREGORY
JEWITT.
A-2241-18T2
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POINT TWO
INDICTMENTS 18-01-0031 AND 18-01-0033 ARE
MULTIPLICITOUS, COUNTS WERE SUBJECT TO
MERGER, ILLEGAL SENTENCES WERE
IMPOSED, AND THE AGGREGATE SENTENCE
IMPOSED IS EXCESSIVE.
Defendants' appeals were calendared back-to-back and we consolidate
them for the purpose of issuing a single opinion.
II.
"[A]n appellate court reviewing a motion to suppress must uphold the
factual findings underlying the trial court's decision so long as those findings
are supported by sufficient credible evidence in the record." State v. Elders, 192
N.J. 224, 243 (2007) (quotations omitted). We disregard only those findings
that "are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). We
review the trial court's legal conclusions on a motion to suppress de novo. State
v. Gandhi, 201 N.J. 161, 176 (2010).
The Fourth Amendment and Article I, Paragraph 7 of the New Jersey
Constitution, protect "[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures . . . ."
U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "Under our constitutional
jurisprudence, when it is practicable to do so, the police are generally required
A-2241-18T2
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to secure a warrant before conducting a search" of a residence. State v.
Hathaway, 222 N.J. 453, 468 (2015). A warrant to conduct a search will not be
issued except "upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched" and the persons and things to
be seized. U.S. Const. amend. IV; accord N.J. Const., art. I, ¶ 7; State v. Smith,
212 N.J. 365, 387 (2012).
To have standing to challenge a warrantless search under the Fourth
Amendment, a defendant must have a legitimate expectation of privacy in the
place searched or the item seized. Byrd v. United States, ___ U.S. ___, 138 S.
Ct. 1518, 1526 (2018) (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978)).
"[N]othing short of ownership of, some possessory interest in, or control over
the" property searched and the item seized will suffice to confer standing under
the Fourth Amendment. Alston, 88 N.J. at 224. However, "the New Jersey
Constitution's prohibition against unreasonable searches and seizures affords
New Jersey citizens greater protection than that provided by the United States
Constitution." State v. Randolph, 228 N.J. 566, 582 (2017); Alston, 88 N.J. at
225-228. There are two circumstances in which a defendant may challenge the
lawfulness of a warrantless search under the State Constitution.
A-2241-18T2
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First, "a criminal defendant has standing to move to suppress evidence
from a claimed unreasonable search or seizure 'if he has a proprietary,
possessory or participatory interest in either the place searched or the property
seized.'" State v. Johnson, 193 N.J. 528, 541 (2008) (quoting Alston, 88 N.J. at
228). A "participatory interest" in the property seized focuses on "the
relationship of the evidence to the underlying criminal activity and defendant’s
own criminal role in the generation and use of such evidence." State v. Mollica,
114 N.J. 329, 339 (1989). A participatory interest "connotes some involvement
in the underlying criminal conduct in which the seized evidence is used by the
participants to carry out the unlawful activity." Id. at 340. Having a
"participatory interest" provides "standing to a person who . . . had some
culpable role, whether as a principal, conspirator, or accomplice, in a criminal
activity that itself generated the evidence." Id. at 399-40.
A participatory interest exists in things that are intentional by-products of
a defendant's criminal conduct or used by the defendant to effectuate the crime.
See Mollica, 114 N.J. at 334-40 (finding defendant had a participatory interest
in phone records of a co-defendant's hotel room, following gambling offenses,
because defendant participated in the illegal bookmaking, which included using
the co-defendant's hotel room phone); State v. Harris, 298 N.J. Super. 478, 481-
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84 (App. Div. 1997) (finding defendant had standing to challenge the seizure of
an answering machine, which contained a recorded telephone message between
co-defendants, from a co-defendant's apartment where the victim was killed);
State v. Biancamano, 284 N.J. Super 654, 659 (App. Div. 1995) (finding
defendant had a participatory interest in the drugs he sold to a third party found
on the third party).
"That evidence implicates a defendant in a crime is not, in and of itself,
sufficient to confer standing." State v. Bruns, 172 N.J. 40, 58 (2002). "There
also must be at a minimum some contemporary connection between the
defendant and the place searched or the items seized." Ibid.
Second, "a defendant has standing if he 'is charged with an offense in
which possession of the seized evidence at the time of the contested search is an
essential element of guilt.'" Johnson, 193 N.J. at 541 (quoting Alston, 88 N.J.
at 228). For this approach to apply, a defendant must be "charged with
possession of the very item seized." State v. Curry, 109 N.J. 1, 8 (1987).
Having carefully reviewed defendants' arguments in light of the record
and applicable legal principles, we agree with the findings of fact and
conclusions of law set forth in the trial court's written opinion accompanying
the September 28, 2018 order. We add the following comments.
A-2241-18T2
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It is undisputed defendants do not have ownership of, a possessory interest
in, or control over, Jewitt's home, his surveillance cameras, or the video
recordings created by those cameras. Defendants are strangers to Jewitt and
have no identifiable interest in his property. They do not, therefore have
standing to challenge the seizure of the video recordings under the Fourth
Amendment.5
We also agree with the trial court that defendants do not have a
proprietary, possessory, or participatory interest in Jewitt's home, his
surveillance cameras, or the video recordings those cameras produced. Jewitt
was not involved in defendants' criminal activity. No facet of defendants' crimes
took place at Jewitt's home. The video recordings produced by Jewitt's
surveillance cameras were not objects used by defendants in carrying out their
crimes or intentional by-products of their criminal activity. While defendants'
5
Defendants did not argue before the trial court they had standing to challenge
the seizure of the video recordings under the Fourth Amendment. Rustin,
however, cites the Fourth Amendment in the sole point heading of his brief. He
does not provide any legal argument or cite authority suggesting he has standing
under the Fourth Amendment. We could deem Rustin to have waived any
argument he may have under the federal constitution. "[A]n issue not briefed is
deemed waived." Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R.
2:6-2 (2020); Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J. Super.
384, 393 (App. Div. 2012) (deeming a contention waived when the party failed
to include any arguments supporting the contention in its brief). We address
Fourth Amendment standing for the sake of completeness.
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15
criminal acts may have been recorded by Jewitt's cameras, the recordings were
the product of Jewitt's installation and operation of security equipment intended
to protect his home. The fact that the video recordings were created
simultaneously with the shooting is immaterial, given defendants' complete lack
of connection to the surveillance cameras. Nor do we find significant that the
video recordings are the only evidence the State may have to establish some
counts of the indictments. The relative value of the seized evidence is not
relevant to the standing analysis.
We also are not persuaded by defendants' argument they have standing to
challenge seizure of the video recordings because they were charged with
possessory offenses. Defendants were not charged with possessing the video
recordings. They were charged with possessing weapons used in the shooting.
The weapons identified in the indictments are not the very items seized .
We decline defendants' invitation to create an extension of standing under
the State Constitution to allow defendants to challenge the seizure of video
recordings of public acts made by surveillance cameras owned by private parties
not involved in the alleged criminal activity. Absent a holding from the Supreme
Court to the contrary, defendants present no convincing argument our
Constitution as presently interpreted provides inadequate protection to
A-2241-18T2
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defendants who commit crimes in public places within the purview of lawfully
operating private security cameras.
We turn to Wright's appeal of his judgment of conviction and sentence.
He makes several arguments which we address in turn.
A. Multiplicity.
Wright argues the two indictments against him were multiplicitous in
some respects. Count Six of the joint indictment charged Wright with second-
degree unlawful possession of a 9mm Keltec handgun. Count Eight charged him
with the same offense with respect to an unspecified handgun. Count One of
the individual indictment charged Wright with first-degree unlawful possession
of a 9mm Keltec pistol at the same time and place as alleged in the joint
indictment. Count Two of the individual indictment charged him with first-
degree unlawful possession of an unspecified weapon at the same time and place
as alleged in the joint indictment. Wright argues these counts amount to
duplicative charges arising from the same conduct. In addition, Wright argues
the three conspiracy charges in the joint indictment were multiplicitous because
each alleged conspiracy was part of one overall agreement or continuous
conspiratorial relationship to commit aggravated assault.
A-2241-18T2
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"[T]he rule against multiplicity prohibits the State from charging a
defendant with multiple counts of the same crime, when defendant's alleged
conduct would only support a conviction for one count of that crime." State v.
Hill-White, 456 N.J. Super. 1, 11 (App. Div. 2018), certif. denied, 237 N.J. 188
(2019). "[A] defendant may not be tried for two identical criminal offenses in
two separate counts based upon the same conduct." State v. Salter, 425 N.J.
Super. 504, 515-16 (App. Div. 2012). "A court may remedy multiplicity by
setting aside all but one of the multiple convictions after the verdict, but the
better approach is to address the issue before trial by dismissing the improperly
duplicative counts of the indictment." Hill-White, 456 N.J. Super. at 12.
We disagree with Wright's argument the unlawful possession charges in
the two indictments are multiplicitous. The joint indictment charges Wright
with collectively, unlawfully possessing both the 9mm Keltec pistol and an
unspecified handgun with his co-defendants. The individual indictment charges
Wright with possessing those weapons individually while having previously
been convicted of robbery. The conduct alleged differs. We see no error in
charging Wright with those offenses.
With respect to conspiracy charges, "if a person conspires to commit a
number of crimes, he is guilty of only one conspiracy, so long as such multiple
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crimes are the object of the same agreement or continuous conspiratorial
relationship." N.J.S.A. 2C:5-2(c); State v. Kamienski, 254 N.J. Super. 75, 113-
15 (App. Div. 1992). We agree the three conspiracies of which Wright was
convicted were part of a single agreement to engage in aggravated assault.
However, merger of Wright's convictions on the conspiracy charges with his
conviction of second-degree aggravated assault will eliminate any harm to him.
Wright also argues that during his plea allocution he admitted to
possessing only the 9mm Keltec handgun. While he acknowledges he admitted
Rustin also was in possession of a handgun during the shooting, he denies having
admitted he had the ability to exercise dominion or control over the gun
possessed by Rustin. He also denied having admitted to an agreement with his
codefendants to possess multiple guns. He argues that he therefore should be
convicted of only one count of a second-degree possession of a handgun for an
unlawful purpose and one count of unlawful possession of a handgun.
We are satisfied that Wright's plea allocution supports the charges of
which he was convicted. He admitted he and his codefendants agreed to arm
themselves for an attack and that he and Rustin went to a vehicle to retrieve two
handguns, one of which Rustin took into his possession. He also admitted he
and Rustin thereafter fired shots into a vehicle with the purpose of causing
A-2241-18T2
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serious bodily injury to its occupant. Based on his admissions, Wright was in
constructive possession of both handguns used in the attack and, under a theory
of co-conspirator liability, was responsible for Rustin's criminal acts arising
from possession of a handgun. N.J.S.A. 2C:2-6(b)(4); State v. Taccetta, 301
N.J. Super. 227, 243-44 (App. Div. 1997).
B. Merger.
Wright argues the trial court erred by imposing sentences on the
conspiracy, unlawful possession of a weapon, and possession of a weapon for
an unlawful purpose counts of the joint indictment despite having merged those
counts with the second-degree aggravated assault conviction.
In addition, Wright argues the trial court erred by imposing sentences on
the second-degree unlawful possession counts of the joint indictment after
imposing separate sentences on the first-degree unlawful possession of a weapon
counts in the individual indictment. He argues N.J.S.A. 2C:39-5(j) creates an
enhanced penalty for violation of unlawful possession of a weapon based on a
prior conviction and is not a criminal offense separate and apart from unlawful
possession of a weapon under N.J.S.A. 2C:39-5. Wright argues that while he
can be convicted of the two first-degree unlawful weapon possession offenses
A-2241-18T2
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in the individual indictment, he cannot also of be convicted of the two second -
degree weapon possession offenses in the joint indictment.
Finally, Wright acknowledges his two second-degree unlawful possession
of a weapon counts, if not dismissed as multiplicitous, should not have merged
with his second-degree aggravated assault conviction.
"Appellate courts review sentencing determinations in accordance with a
deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). "Merger is based
on the principle that 'an accused [who] has committed only one offense . . .
cannot be punished as if for two.'" State v. Miller, 108 N.J. 112, 116 (1987)
(alteration in original) (quoting State v. Davis, 68 N.J. 69, 77 (1975)). Merger
prohibits "double punishment for the same offense[,]" Davis, 68 N.J. at 77, and
"implicates a defendant's substantive constitutional rights." State v. Tate, 216
N.J. 300, 302 (2013) (quoting Miller, 108 N.J. at 116).
"N.J.S.A. 2C:1-8(d) calls for merger when one offense is established by
proof of the same or less than all of the facts required to establish the
commission of another offense charged . . . ." State v. Mirault, 92 N.J. 492, 502
n.10 (1983). Our courts follow a "flexible approach in merger issues that
requires us to focus on the elements of the crimes and the Legislature's intent in
creating them, and on the specific facts of each case." State v. Brown, 138 N.J.
A-2241-18T2
21
481, 561 (1994) (quotations omitted). The Legislature may "split a single,
continuous transaction into stages, elevate each stage to a consummated crime,
and punish each stage separately." Davis, 68 N.J. at 78. "The cases not requiring
merger have had clear statutory differences illustrating legislative intent to
fractionalize a course of conduct." Tate, 216 N.J. at 312. The court must
determine whether the two offenses are the same and therefore merge, or
whether "each [offense] requires proof of an additional fact[,] which the other
does not[,]" making merger inapplicable. State v. Dillihay, 127 N.J. 42, 48
(1992) (first alteration in original) (quoting Blockburger v. United States, 284
U.S. 299, 304 (1932)).
The State disagrees with Wright's merger arguments, apart from its
concession his two second-degree unlawful weapons possession convictions in
the joint indictment should not have merged with the aggravated assault count.
We are persuaded by Wright's argument that all of the convictions in the
joint indictment, other than the second-degree unlawful weapon possession
convictions, should have merged with his second-degree aggravated assault
conviction prior to imposition of sentence. The court erred by imposing
sentences on counts that were thereafter merged. On remand, the court should
A-2241-18T2
22
impose a sentence on only those convictions that survive merger. State v. Hill,
182 N.J. 532, 551 (2005).
We also agree Wright's second-degree weapon possession convictions do
not merge with his second-degree aggravated assault conviction. See State v.
Deluca, 325 N.J. Super. 376, 392-93 (App. Div. 1999), aff'd, 168 N.J. 626
(2001). If the joint indictment was the sole indictment at issue, Wright would
be sentenced on those convictions. However, in light of the fact that Wright was
convicted of two counts of first-degree unlawful possession of a weapon
pursuant to N.J.S.A. 2C:39-5(j), which enhances the penalty for the offense, but
does not create a separate offense, it would be multiplicitous to sentence
defendant for both the second-degree convictions in the joint indictment and the
first-degree convictions in the individual indictment. The convictions of the
greater degree of the offense should survive. State v. Hammond, 231 N.J. Super.
535, 545 (App. Div. 1989). On remand, the trial court should dismiss the two
convictions of second-degree unlawful possession of a weapon in the joint
indictment consistent with this opinion.6
6
Because the judgments of conviction in Rustin and Harris merge their
convictions of second-degree unlawful possession of a weapon with their
convictions of second-degree aggravated assault, we remand those appeals for
resentencing. In addition, to the extent the trial court intended to sentence
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C. Illegal Sentences.
Wright argues the five-year sentences he received on the certain persons
convictions were illegal because N.J.S.A. 2C:39-7(b) provides that any sentence
on those counts must include a period of parole ineligibility of at least five years.
In addition, Wright argues that his judgment of conviction refers to N.J.S.A.
2C:16-1, the bias crime statute. Wright, however, was not charged with a bias
crime in either indictment. The reference appears to be a typographical error.
The State agrees on both points. On remand, the court will impose a five-
year period of parole ineligibility on Wright's certain persons convictions in the
individual indictment. In addition, the judgment of conviction will be amended
to remove reference to the bias crime statute.7
D. Excessive Sentence.
We reject Wright's argument that his sentence is excessive. We review
sentencing determinations for abuse of discretion. State v. Robinson, 217 N.J.
594, 603 (2014) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). The
Rustin and Harris on any counts merged with their second-degree aggravated
assault convictions, we direct the trial court to sentence Rustin and Harris only
on the convictions that survive merger.
7
On remand, the court shall also impose a five-year period of parole ineligibility
on Rustin's certain persons convictions.
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sentencing court must "undertake[] an examination and weighing of the
aggravating and mitigating factors listed in [N.J.S.A.] 2C:44-1(a) and (b)."
Roth, 95 N.J. at 359; State v. Kruse, 105 N.J. 354, 359 (1987). Furthermore,
"[e]ach factor found by the trial court to be relevant must be supported by
'competent, reasonably credible evidence'" in the record. Fuentes, 217 N.J. at
72 (quoting Roth, 95 N.J. at 363).
We accord deference to the sentencing court's determination. Id. at 70
(citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). We must affirm Wright's
sentence unless
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[Ibid. (alteration in original)(quoting Roth, 95 N.J. at
364-65).]
We are satisfied the judge's findings and balancing of the aggravating and
mitigating factors are supported by adequate evidence in the record, and
Wright's sentence is neither inconsistent with sentencing provisions of the Code
of Criminal Justice, except as noted previously, nor shocking to the judicial
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conscience. See Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010); State v.
Cassady, 198 N.J. 165, 180-81 (2009).
To the extent we have not specifically addressed any of defendants'
remaining arguments it is because we conclude they lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
The September 28, 2018 order of the Law Division is affirmed. The
matters are remanded for resentencing consistent with this opinion. We do not
retain jurisdiction.
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