On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Michels and O'Brien. The opinion of the court was delivered by Michels, P.J.A.D.
[213 NJSuper Page 564] Tried to a jury, defendant Ronald Jones was convicted of (1) two counts of armed robbery, crimes of the first degree, in
violation of N.J.S.A. 2C:15-1 (First Count and Fourth Count); (2) two counts of aggravated assault, crimes of the third degree in violation of N.J.S.A. 2C:12-1b(2) (Second Count and Fifth Count); (3) possession of a weapon, to wit, a razor, under circumstances not manifestly appropriate for such lawful uses as it may have, a crime of the fourth degree, in violation of N.J.S.A. 2C:39-5d (Third Count); and (4) possession of a weapon, to wit, a razor, with a purpose to use it unlawfully, a crime of the third degree, in violation of N.J.S.A. 2C:39-4d (Sixth Count). The trial court (1) committed defendant to the custody of the Commissioner of the Department of Corrections (Commissioner) for concurrent terms of 15 years and assessed penalties aggregating $525, payable to the Violent Crimes Compensation Board for the two armed robberies (First and Fourth Counts); (2) committed defendant to the custody of the Commissioner for a consecutive term of four years for the one aggravated assault (Second Count) and for a concurrent term of four years for the other aggravated assault (Fifth Count) and also assessed penalties aggregating $50; and (3) committed defendant to the custody of the Commissioner for a concurrent term of four years and assessed a penalty of $25 for each of the possession of weapon convictions (Third Count and Sixth Count). In addition, the trial court imposed a parole disqualifier of five years upon defendant but did not assign the parole ineligibility term to a specific sentence or count of the indictment. Thus, in the aggregate, defendant was sentenced to 19 years imprisonment, with a five-year-period of parole ineligibility, and penalized $625. Defendant appeals, seeking a reversal of his convictions or, alternatively, a modification of his sentences on the following grounds set forth in his brief:
POINT I THE COURT'S CHARGE TO THE JURY WITH RESPECT TO FLIGHT ON THE PART OF THE DEFENDANTS WAS PREJUDICIAL BECAUSE THE COURT FAILED TO STATE THAT DEFENDANT OFFERED AN EXPLANATION FOR LEAVING THE SCENE.*fn1
POINT II THE TRIAL JUDGE ABUSED HIS DISCRETION WHEN HE REFUSED TO SUBMIT THE ENTIRE CHARGE IN WRITTEN FORM TO THE JURY. (RAISED BY CO-DEFENDANT).
POINT III A TOTAL SENTENCE OF NINETEEN YEARS FOR THESE CRIMES WAS EXCESSIVE.
POINT IV DEFENDANT'S CONVICTION ON COUNTS TWO, THREE, FIVE AND SIX SHOULD HAVE MERGED WITH THE CONVICTIONS ON COUNTS ONE AND FOUR. .
POINT V THE CONCURRENT SENTENCE OF FOUR YEARS IMPOSED ON COUNT THREE WAS ILLEGAL.
We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that, with the exception of the challenges raised in Points IV and V of defendant's brief, they are clearly without merit. R. 2:11-3(e)(2).
We turn first to defendant's claim that there should have been a merger of his convictions (Point IV). Although defendant did not raise this issue before the trial court, he now contends that his convictions for aggravated assault (Second and Fifth Counts) and his convictions for unlawful possession of a weapon (Third and Sixth Counts) should merge with his convictions for armed robbery (First and Fourth Counts), and that, therefore, he only should have been sentenced on the latter two convictions. Defendant argues that because each count of unlawful possession charged him with possession of the same razor, they should merge. In the same vein, he argues that "[t]he proofs adduced at the trial . . . indicated that [he] had a razor or blade in his hand while the attempted robberies and assaults took place." Thus, according to defendant, the evidence which led to his ...