On appeal from the Superior Court, Law Division, Mercer County.
Long and Keefe. The opinion of the court was delivered by Keefe, J.s.c. (temporarily assigned).
[231 NJSuper Page 557] Defendant Tyrone Daniels, his brothers, Louis and Timothy Daniels, and Michael Prater were indicted in the first count of a two count indictment for the aggravated assault of Charles Stewart contrary to N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6. In the second count the same parties were charged with possession of a weapon, to wit, "a razor knife or piece of glass" with purpose to use it unlawfully against Charles Stewart contrary to the provisions of N.J.S.A. 2C:39-4d and N.J.S.A. 2C:2-6.*fn1 After a jury trial defendant was convicted on both counts of the indictment. Michael Prater was found not guilty on all counts while Louis Daniels and Timothy Daniels were found guilty of
the lesser included offense of simple assault on the first count and not guilty on the second count.
Defendant was sentenced to a term of seven years on count one and to a concurrent three year term on count two. A Violent Crimes Compensation Board Penalty of $50.00 was assessed and defendant was given appropriate credit for time served. Defendant appeals and raises the following issues:
POINT I: THE TRIAL COURT'S INSTRUCTIONS TO THE JURY ON THE "UNLAWFUL PURPOSE" ELEMENT OF N.J.S.A. 2C:39-4(d) FAILED TO ADEQUATELY CONVEY THE FACT THAT A PERSON'S ORIGINAL PURPOSE OR INTENT IN POSSESSING A WEAPON HAD TO BE UNLAWFUL. (Not Raised Below).
POINT II: THE TRIAL COURT'S DENIAL OF THE DEFENDANT'S MOTION FOR A MISTRIAL SHOULD BE REVERSED BECAUSE THE IMPROPER ACTIONS OF THE PROSECUTOR CAUSED GREAT PREJUDICE TO THE DEFENDANT, RESULTING IN MANIFEST INJUSTICE.
We shall address the issues in the order that they were raised by defendant.
To convict a person under N.J.S.A. 2C:39-4d, a jury must find that: 1) the item possessed was a "weapon" within the meaning of N.J.S.A. 2C:39-1(r); 2) the defendant "possessed" it, which requires knowledge of awareness of his control over the item (N.J.S.A. 2C:2-1c); 3) the defendant's purpose in possessing the weapon was to use it against the person or property of another; and 4) the defendant intended to use the weapon in a manner that was unlawful. State v. Harmon, 104 N.J. 189, 212 (1986). Defendant contends that the trial judge did not correctly apply the Harmon principles in his instructions to the jury. He argues that the "opinion makes meticulously clear the fact that the person's original intent in possessing the (weapon) must be unlawful." Defendant relies upon a passage from State v. Mieles, 199 N.J. Super 29, 41 (App.Div.1985), cert. den. 101 N.J. 265 (1985), quoted in Harmon, Id. 104 N.J. at 205, in making his argument. The relevant passage is as follows:
[T]he verdict here may simply have reflected a finding by the jury that while defendant did not originally possess the weapon for unlawful use the difficulties
between defendant and Casagrande [the victim] triggered the aggravated assault and armed robbery. There would be no inconsistency in the verdict, for the possession count related to the purpose for which defendant possessed the gun and not how he used it. 199 N.J. Super. at 41.
The quote from Mieles must be understood in the context of the issues raised on appeal in that case. Mieles' contention was that his acquittal for possession of a weapon for the unlawful purpose of using it against Casagrande negated an essential element required for his convictions of armed robbery and aggravated assault using the very same weapon, thus requiring reversal of his conviction on those counts. In that factual context we discern that the Mieles court intended only to observe that the jury apparently had insufficient evidence to convict Mieles of possession of a weapon for an unlawful ...