Opinion
DOCKET NO. A-5657-09T2
05-15-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARIO MANZANAL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief). Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Gina Giordano, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Accurso.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-02-0366.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).
Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Gina Giordano, Assistant Prosecutor, on the brief). PER CURIAM
Following a jury trial, defendant Mario Manzanal was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2) (count three); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count six). Defendant was acquitted of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one), and the jury did not consider the charge of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7) (count four). The judge sentenced defendant to eight years on the second-degree aggravated assault charge, subject to a mandatory eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, into which the remaining counts for aggravated assault (counts three and four) were merged. The judge merged defendant's conviction for unlawful possession of a knife (count six) into the conviction for possession of a weapon for an unlawful purpose (count five) and imposed a concurrent five-year term, along with appropriate monetary fees and penalties.
Defendant raises the following arguments on appeal:
POINT I
THE JUDGE'S ESTIMATE THAT THE TIME LIMIT FOR DECIDING A CASE OF THIS LENGTH IS "WITHIN AN HOUR, TWO, MAYBE THREE," AND HIS DISCOURAGING THE JURY FROM ASKING FOR READBACK, CONSTITUTED IMPROPER JUDICIAL INTERFERENCE WITH THE DELIBERATIVE PROCESS AND WERE SO UNDULY COERCIVE THAT DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW. (Not raised below)
POINT II
THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10). (Not raised below)
POINT III
THE JUDGE'S ANSWER TO THE JURY'S QUESTION REGARDING DEFENDANT'S LIABILITY FOR ATTEMPTED AGGRAVATED ASSAULT-SERIOUS BODILY INJURY, WAS WOEFULLY INADEQUATE, BOTH FAILING TO GUIDE THE JURY IN ITS DELIBERATIONS AND HAVING THE CAPACITY TO MISLEAD THE JURY, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. (Not raised below)
POINT IV
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND WAS SEEMINGLY IMPOSED IN ALMOST COMPLETE IGNORANCE OF THE RECORD.Having considered these arguments in light of the record and existing law, we conclude that none of the alleged trial errors was clearly capable of producing an unjust result. We determine, among other things, however, that the sentencing judge's application of aggravating factor six was error and that defendant's conviction on the weapons charges, for which he received a concurrent five-year term, should have been merged into his conviction for second-degree aggravated assault. Accordingly, we vacate the sentence and remand for resentencing. We affirm in all other respects.
On September 24, 2008, twenty-five year old Gilberto Ferreira walked home from an evening G.E.D. class in Jersey City. Ferreira testified that as he neared his apartment building, he saw his nineteen year old sister, Sasha, among a group of about a dozen young people "hanging out" at the top of the front steps. Ferreira noticed that two of defendant's sons were among the group. Ferreira stopped to borrow his sister's keys to the family's apartment. Sasha gave him her keys and Ferreira proceeded to walk towards the apartment while talking on his cell phone to his cousin. As he walked, Ferreira saw his next-door-neighbor, defendant Mario Manzanal, walking towards him. As defendant approached, he pulled out a knife and stabbed Ferreira in the chest.
We use only the first names of Ferreria's siblings to avoid any unnecessary confusion.
Ferreira testified that he screamed, turned, and ran back towards the group, yelling out to his sister, "I'm stabbed," as he ran past her and down the steps. Defendant chased Ferreira with the knife, yelling in Spanish, "I'm going to kill you." As defendant pursued Ferreira down the steps, he fell face down. Ferreira kept running until he rounded the corner, where he used his cell phone to call his older brother, Alex, for help.
Sasha testified that after she gave her brother the keys, he turned and walked towards their apartment. She then heard him scream. As she turned back in the direction he had gone, "he just rushes right past me and then my best friend, Melissa, she rushes right past me chasing him and then [defendant] Mr. Manzanal comes, chasing my brother with a knife" yelling in Spanish, "I'm going to kill you." As she started down the steps after her brother, defendant fell. As she watched, defendant's "sons picked him up and when they got to the top of the stairs with their father, he went to cut someone else but his son stopped him and said 'that's not him.'" Sasha then ran to her apartment but could not get in because she'd given her brother her keys. "I'm banging on the door and as they're bringing [their father] up, I live right next door to [defendant] Mr. Manzanal, right next door. I'm banging on the door and as they're bringing him in, he's like this with the knife, like waving it at me." Sasha testified that the knife defendant was holding looked like a hunting knife.
Kadisha Hamilton testified that she was with a group of people outside her friend Sasha's apartment building when Sasha's brother was stabbed. Hamilton testified that she knew the Manzanal family because defendant's daughter was a friend of hers. She saw defendant chasing Ferreira with a knife and defendant's sons pick him up and take him to their apartment after he had fallen on the steps. Hamilton testified that she identified defendant to the police that evening as the man who stabbed Ferreira. Hamilton, Ferreira, and Sasha all identified defendant in court as the man who stabbed and chased Ferreira with the hunting knife.
Ferreira was taken to the hospital by ambulance. He testified that before he was taken to surgery, the police brought defendant to the hospital, and that he identified defendant as the man who stabbed him.
Ferreira also testified that prior to the events that transpired on September 24, 2008, he had served fifty-six months in prison for aggravated assault on defendant's son. He testified that the two had been friends and next-door-neighbors, but had gotten into a fight outside their apartment building when Ferreira was nineteen. Defendant's son was cut, and while Ferreira denied that he had a box cutter, he pled guilty to aggravated assault. After being released from jail, Ferreira returned to his mother's apartment, next-door to the Manzanals, two or three months before this encounter with defendant.
Defendant was arrested at his apartment shortly after the stabbing. He consented to the search of his home, but no weapon was recovered. Defendant was the only witness to testify for the defense. He testified that he was at home with his children on the night Ferreira was stabbed, and that he'd not left the apartment the entire day. He testified that his sons likewise, had never left the apartment, and that the witnesses who testified that they had seen him or his sons that night had lied.
The stab wound Ferreira suffered punctured his lung. He required surgery and remained in the hospital for two weeks.
The jury acquitted defendant of the most serious charge of attempted murder, but found him guilty of second-degree aggravated assault, third-degree aggravated assault with a deadly weapon, third-degree possession of a knife for an unlawful purpose, and fourth-degree unlawful possession of a knife. The judge sentenced him to eight years on the aggravated assault charges with a NERA eighty-five percent period of parole ineligibility, and to a five-year concurrent term on the weapons offenses.
We note at the outset that none of defendant's arguments alleging trial error were raised to the trial court. We review arguments raised for the first time on appeal under a plain error standard. Under this standard, we disregard an error unless it was "clearly capable of producing an unjust result." R. 2:10-2; State v. Daniels, 182 N.J. 80, 95 (2004); State v. Macon, 57 N.J. 325, 337 (1971). One of the reasons that we deal with claims of error, which could have been but were not raised at trial, differently from those timely challenged is because "[i]t may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment." Macon, supra, 57 N.J. at 333. In such a case, we will reverse defendant's conviction only if we are convinced that there was error "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Id. at 336.
In his first point on appeal, defendant contends that the judge's comments to the jury regarding the schedule of its deliberations and any requests for readback impermissibly intruded on the jury's deliberations and were so unduly coercive so as to deny defendant a fair trial. We disagree.
This was a short trial. The presentation of all testimony, openings and summations took only one day. Near the end of that day, just before summations, the trial judge spent a few minutes addressing the jury about the schedule for the remainder of the case. Because his remarks were brief, and their context important, we include them in their entirety.
What we're going to do is we're going to have summations. I don't know how long summations are going to be. Some attorney will say it's going to be fifteen minutes and it ends up a half hour, some will say it's a half hour and it ends up twenty minutes, you know?
So we'll finish the summations up this afternoon. More than likely with a case of this length probably the combination will be forty, forty-five minutes between the two attorneys probably.
I'm not going to charge you tonight. What we'll do is we'll come back tomorrow morning at nine o'clock and I will charge you on the law. That should take me about forty, forty-five minutes, okay? Because I have to go over all the law, the criminal charges besides the regular charge. And then one of you will be picked as an alternate.
What I would suggest is [every]one bring something tomorrow because one person is going to be sitting in a room by themselves while the jury starts to deliberate. I don't know how long it will take the jury. Sometimes a jury decides a case in five minutes, sometimes in five hours and sometimes in five days.
I mean normally with a case of this length, within an hour, two, maybe three is probably the time limit. But if you're stuck in the room alone, whether it's ten minutes or two hours it's going to be very boring. So what I would suggest is that you bring something tomorrow to read or play little hand games like they do now or whatever it is so you can be occupied during that time.
The person that's chosen as the alternate, any time the jury is brought back into the courtroom for any reason, they'll
be brought back in but we always need an extra because we never know when somebody else may get sick and we'd have to replace a juror, okay?
So that's my only piece of advice, make sure you have something to entertain yourself in case you're the extra, okay? And with that we can start with summations. Mr. Patel?
These are the sort of unobjectionable remarks that trial judges make to juries throughout our State everyday. They are done out of courtesy and respect for the jury's time and attention. Remarks such as these provide jurors with what to expect and allow them to plan their time accordingly. Moreover, the trial judge made these remarks the day before he charged the jury and it began its deliberations. Thus the cases on which defendant relies, addressing the carefully constrained supplemental instructions that may be given when a jury has announced that it is deadlocked, are simply inapposite. See State v. Figueroa, 190 N.J. 219, 242 (2007) (holding supplemental instruction conveying impression that jury required to continue deliberations until they reached unanimity was error); State v. Czachor, 82 N.J. 392, 401 (1980) (directing discontinuance of use of Allen charge as inherently coercive); State v. Nelson, 304 N.J. Super. 561, 564-66 (App. Div. 1997) (instruction advising jury that judge would declare mistrial if jury did not reach a verdict within forty-five minutes, plain error). Although the phrase "time limit," which the court used in forecasting the following day's schedule was ill-chosen, we find no error in these rather innocuous remarks.
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).
Defendant also contends that the judge discouraged the jury from requesting that testimony of the witnesses be read back to them. At the end of his instructions, the trial judge reviewed with the jury what they should do if they had a question or wished testimony to be read back to them. He explained that while his was a video-equipped courtroom, "we don't have the great equipment that they do in sports events where they can isolate certain things real quick and know what they're looking for, alright? We can always play back videotaped testimony. It's possible but it's not easy." The judge went on to advise that the jury try to "isolate" the testimony they wished read back to them if they found themselves in disagreement over any portion of it.
It is well-settled law that the reading of the testimony of a witness at the specific request of the jury during their deliberations is discretionary with the trial court. State v. Wilson, 165 N.J. 657, 660 (2000). We have no occasion to review the trial judge's exercise of discretion here as the jury never requested that any testimony be read back to them. Moreover, there is no indication in the record that there was any portion of the testimony as to which the jury was in doubt or disagreement requiring readback. Accordingly, we view the claim that the judge's instructions as to readback interfered with the jury's deliberations as utterly speculative. Notwithstanding, we find no error in the judge explaining the technical limitations of the courtroom's videotaping system and requesting that the jurors be as specific as possible regarding any readback requests.
Next defendant contends that the trial judge erred in failing to give an identification charge. We, of course, start with the proposition that, "[a]ccurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial." State v. Concepcion, 111 N.J. 373, 379 (1988). "[A] mandatory duty exists on the part of the trial judge to instruct the jury as to the fundamental principles of law which control the case." State v. Butler, 27 N.J. 560, 595 (1958). Here, during a break in the trial, the court indicated that, in addition to the "2C charges," "there's a stipulation that's going to have to be charged[,] out of court, in court identification," and "convictions by witnesses." Both counsel agreed. The following day, the trial judge omitted the identification charge, apparently inadvertently, without objection.
"[A]s a matter of general procedure a model identification charge should be given in every case in which identification is a legitimate issue." State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003). "When identification is a 'key issue,' the trial court must instruct the jury on identification, even if a defendant does not make that request." State v. Cotto, 182 N.J. 316, 325 (2005). Failure of the court to give the instruction in such circumstances may constitute plain error. Id. at 326.
Identification was certainly a key issue to the defense, as defendant contended that he was at home when Ferreira was stabbed and that the State's witnesses lied when they testified that he was the perpetrator. Nevertheless, because defendant failed to object to the court's omission of the identification charge, we do not presume prejudice. Instead we "review the charge and the corroborative evidence to determine whether the deficiency was harmless, clearly incapable of producing an unjust result." State v. Gaines, 377 N.J. Super. 612, 623 (App. Div.) certif. denied, 185 N.J. 264 (2005). Our focus is on the strength and quality of the State's corroborative evidence and not whether defendant's misidentification argument is convincing. Cotto, supra, at 326; see also State v. Salaam, 225 N.J. Super. 66, 70 (App. Div.), certif. denied, 111 N.J. 609 (1988).
Defendant was identified on the night of the stabbing and at trial by three eyewitnesses; all of whom knew him. Ferreira's family had lived next door to defendant for nine years. Both Ferrira and his sister Sasha were well-familiar with both defendant and his sons, who also lived next door. Defendant confirmed on cross examination that he knew Ferreira and had seen him in the courtyard of their apartment building three or four times after Ferreira was released from prison. Kadisha Hamilton, the only eyewitness who was not a member of either defendant's or Ferreira's family to testify, identified defendant to the police on the night of the stabbing. She testified that she was well-acquainted with defendant and his family through her friendship with defendant's daughter. Hamilton, who was brought to court by two detectives, and did not appear to have been otherwise willing to testify, corroborated the accounts of both Ferreira and his sister that defendant's sons had been amongst the group gathered in front of the apartment building that evening, that Ferreira had been stabbed, and that defendant had thereafter chased Ferreira with a knife. Hamilton, who testified that she had not spoken before trial to either of the Ferreiras, also corroborated Sasha's testimony that defendant's sons had helped him to his apartment after he fell chasing Ferreira down the steps.
The court's charge did not include a specific instruction on identification, not even the abbreviated charge we approved in State v. Davis. Davis, supra, 363 N.J. Super. at 562-63. The trial judge did, however, include repeated, specific references to the State's obligation to prove beyond a reasonable doubt that defendant caused bodily injury to Ferreira with a weapon. The judge charged that defendant was presumed innocent and had no obligation to prove his innocence or offer any proof in his defense. Further, the trial judge thoroughly instructed the jury in weighing the credibility of the witnesses, including that they could weigh Ferreira's prior conviction for aggravated assault in assessing his credibility.
We are satisfied that, read as a whole, this charge could not have permitted the jurors to conclude that they could convict defendant on the aggravated assault and weapons charges without the State proving that he was the person who stabbed Ferreira. Gaines, supra, 377 N.J. Super. at 625-26. Thus, although we conclude that the judge erred in failing to give the abbreviated identification charge approved in Davis, we are satisfied on the strength of the State's corroborating evidence and the jury charge as a whole, that the error was harmless. All three witnesses knew defendant and his sons. As in Gaines, their independent identifications of him were based on their recognition of a man they knew personally, and not on their abilities to recollect the physical characteristics of a stranger. Gaines, supra, 377 N.J. Super. at 626. Accordingly, we conclude that the deficiencies in the charge are rendered harmless by the strength and quality of the State's corroborative evidence. Cotto, supra, 182 N.J. at 327.
In his third point of error, defendant alleges that the trial judge's response to the jury's questions was inadequate and misleading, thus depriving him of a fair trial. After deliberations had begun, the jury had two questions on the aggravated assault counts. On count two, the second-degree aggravated assault charge, the jury asked whether "an intent to cause serious injury [is] enough for a guilty verdict" or "do [the] actual injuries have to be serious?" Secondly, the jury sought clarification on "serious versus significant injury." After discussing the questions and his proposed response with counsel, the judge responded.
As I previously instructed you, defendant can be found guilty if he either caused serious bodily injury to another or attempted to cause serious bodily injury to another. That the defendant purposely attempted to cause serious bodily injury to another.
If you find beyond a reasonable doubt that the defendant attempted to cause serious bodily injury, it does not matter whether such injury actually resulted. Okay? I think that answers question number one.
Question number two, can we get clarification on serious versus significant injury. The first one I'm going to read you is serious. Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of a function of any body member or organ. Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, protracted loss or impairment of a function of any bodily organ or member.
Significant bodily injury is bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any of one of the five senses. As you know the five senses are sight, hearing, touch, taste and smell, okay?
Those are the definitions of . . . significant and serious, okay? I think I've answered your question.
Defendant argues that the first question makes obvious that at least some members of the jury had already concluded that Ferreira had not suffered serious bodily injury and were grappling with whether the evidence established that defendant had attempted to cause serious bodily injury and whether such was sufficient for conviction on count two. Defendant contends that the judge failed to fully define the concept of intent to cause serious bodily injury and that it was incumbent on the court to recharge with respect to the term "purposely." He argues that the jury's second question supports the conclusion that the jury was concerned as to whether defendant's conduct established second versus third-degree aggravated assault.
We see no error in the court's response to the jury on these questions. The judge advised the jury that if they found beyond a reasonable doubt that defendant purposely attempted to cause serious bodily injury to the victim, then defendant could be found guilty on count two. He reread the charge on the definitions of serious and significant bodily injury. The court's response was clear and accurate and provided the jury with specific responses to the questions they asked. Nothing else was required. See State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 2004) (when a question from the jury is direct and simple to answer, the judge may simply repeat the appropriate portion of the instructions). We find no error in the judge's response to the jury here, much less one clearly capable of producing an unjust result. R. 2:10-2.
Lastly, defendant contends that his eight-year sentence is manifestly excessive. Although we do not necessarily agree that defendant's sentence is excessive, we conclude that a remand for resentencing is required.
Defendant contends that the ineffective assistance of his counsel at sentencing contributed to his excessive sentence. We defer consideration of this argument to an application for post conviction relief as we do not consider the trial record sufficient to resolve this issue. See State v. Preciose, 129 N.J. 451, 460-62 (1992) (ineffective assistance claims, depending, as they often do, on evidence outside the record, are generally not appropriately addressed on direct appeal).
Defendant was almost sixty-one years old at the time of sentence. He had never been previously convicted of a crime, although he had been twice charged with offenses that were later dismissed. The presentence report notes that he suffers from a serious chronic health condition. Because of his age and poor health and the lack of any prior convictions, the probation officer preparing the pre-sentence report recommended probation. The judge made no mention of the recommendation at sentencing. The record on sentencing is terse. We quote the court's comments identifying and balancing the aggravating and mitigating factors in their entirety.
I find aggravating factors three, six and nine. I did take into consideration instead of giving him ten years based upon the nature of the attack as to the defendant's condition and his prior - he did have involvement but no convictions. I've taken that into consideration.
. . . .
And as I said I find aggravating factors three, six and nine and I find . . . mitigating factor seven and I considered
eleven but I gave him aggravating factors three, six and nine which are controlling and outweigh the other two mitigating factors.
We are mindful that a trial court possesses considerable discretion in sentencing. State v. Dalziel, 182 N.J. 494, 500 (2005). We are to affirm a sentence, even if we would have imposed a different one, so long as the sentencing judge "properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. Natale, 184 N.J. 458, 489 (2005) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). A sentencing court "should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. While this process need "not be a discourse," State v. Dunbar, 108 N.J. 80, 97 (1987), it is not enough for a judge to merely enumerate the factors, as that deprives a reviewing court of the benefit of the judge's reasoning. State v. Kruse, 105 N.J. 354, 363 (1987).
Here, the sentencing judge inappropriately applied aggravating factor six, the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted. N.J.S.A. 2C:44-1a(6). Defendant had no convictions on his record. Accordingly, while the court might well consider defendant's two prior arrests as part of his personal history in order to get as full a picture of his life, character and past conduct as possible for purposes of sentencing, those arrests in no way equate with criminal convictions. State v. Marzolf, 7 9 N.J. 167, 177 (1979); State v. Green, 62 N.J. 547, 562 (1973). As defendant had no criminal convictions, application of aggravating factor six was error. Cf. State v. Lawless, 423 N.J. Super. 293, 305 (App. Div. 2011), appeal granted, 209 N.J. 230 (2012) (driving under the influence of alcohol not a crime and thus prior convictions for such cannot support consideration of aggravating factor six); State v. Radziwil, 235 N.J. Super. 557, 575-76 (App. Div. 1989), aff'd, 121 N.J. 527 (1990) (defendant's prior convictions for driving under the influence of alcohol could not be considered an aggravating factor under N.J.S.A. 2C:44-1a(6), although they could be considered as part of defendant's overall personal history in the same fashion as convictions in municipal court or a juvenile record).
The lack of any qualitative analysis of the pertinent sentencing factors and the trial court's mistaken application of aggravating factor six, compel us to remand for resentencing. Although the sentence imposed is in the middle of the range for a second-degree crime and does not "shock the judicial conscience," State v. Roth, 95 N.J. 334, 365 (1984), we cannot read in the sentencing transcript the weight the sentencing judge accorded to aggravating factor six and whether he would have imposed a different sentence had that factor not been in the balance. See State v. Miller, 205 N.J. 109, 130 (2011) (inability of reviewing court to sufficiently discern trial court's reason for imposing sentence requires remand for resentencing).
In addition, although not raised by the parties, we conclude that the weapons offenses, for which defendant was sentenced to a five-year concurrent term, should have been merged into the second-degree aggravated assault charge. Hence, the five-year concurrent term constitutes an illegal sentence that must be vacated.
We also note additional errors in the judgment of conviction that must be corrected. The aggravated assault charged in count two is incorrectly listed in the final charges as a third-degree, not a second-degree crime. As the sentence imposed would exceed the maximum range for a third-degree crime, N.J.S.A. 2C:43-6a(3), the error is not inconsequential. Further, the sentencing statement notes that count three and count four are merged into count two. Because the jury found defendant guilty of count two, in accordance with the court's instruction, it never considered count four. Count four should have been dismissed after the verdict; it cannot be merged.
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The jury found defendant guilty of third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five), and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count six). On the basis of the proofs at trial, the judge appropriately merged these two possessory counts. See State v. Jones, 213 N.J. Super. 562, 568 (App. Div. 1986), certif. denied, 107 N.J. 90 (1987).
The court erred, however, in sentencing defendant on these counts instead of merging them into the second-degree aggravated assault charge. When possession of a knife for an unlawful purpose is coupled with a charge of an assault accomplished with the knife, the use of the knife to commit the assault provides the factual underpinning for the inference that the knife was possessed for an unlawful purpose. State v. Diaz, 144 N.J. 628, 636 (1996). When, as in this case, "the only unlawful purpose in possessing the [knife] is to use it to commit the substantive offense, merger is required." Ibid.
Although this issue was not raised in the trial court or on appeal, merger issues implicate a defendant's constitutional rights. State v. Cole, 120 N.J. 321, 327 (1990). We are guided by the fundamental principle that "[i]f an accused has committed only one offense, he cannot be punished as if for two." State v. Davis, 68 N.J. 69, 77 (1975). The failure to merge convictions results in an illegal sentence for which there is no procedural time limit for correction. See R. 3:21-10(b)(5). Because defendant's only use of the knife was to commit the substantive offense of second-degree aggravated assault, we vacate the sentence on the possessory counts and remand for the merger of defendant's conviction for third-degree possession of a weapon for an unlawful purpose (count five), and third-degree unlawful possession of a weapon (count six), into his conviction for second-degree aggravated assault (count two).
We affirm defendant's conviction and remand for a resentencing hearing and entry of an amended judgment vacating the five-year concurrent term on count five and correcting the judgment in conformance with this opinion.
Affirmed in part; reversed in part and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION