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State v. Rivers

Decided: November 26, 1991.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GEORGE RIVERS, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Hudson County.

Michels, O'Brien and Conley. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Tried to a jury, defendant George Rivers was convicted of (1) aggravated assault by recklessly causing serious bodily injury

to George Brown and Darren Burgess in violation of N.J.S.A. 2C:12-1b(1) (Third Count); (2) aggravated assault by purposely or knowingly causing bodily injury to George Brown with a deadly weapon, to wit, a handgun, in violation of N.J.S.A. 2C:12-1b(2) (Fourth Count); (3) aggravated assault by recklessly causing bodily injury to George Brown and Darren Burgess with a deadly weapon, to wit, a handgun, in violation of N.J.S.A. 2C:12-1b(3) (Fifth Count); (4) aggravated assault by knowingly pointing a firearm at or in the direction of George Brown and Darren Burgess in violation of N.J.S.A. 2C:12-1b(4) (Sixth Count); and (5) unlawful possession of a weapon, to wit, a handgun, without first having obtained a permit to carry same as provided in N.J.S.A. 2C:58-4 in violation of N.J.S.A. 2C:39-5b (Twelfth Count).

The trial court denied defendant's motion for a new trial and committed defendant to the custody of the Commissioner of the Department of Corrections (Commissioner) for seven years with a three-year period of parole ineligibility and assessed a $30 Violent Crimes Compensation Board (VCCB) penalty for his conviction for aggravated assault upon George Brown and Darren Burgess under the Third Count and to a concurrent five-year term with a three-year period of parole ineligibility and assessed a $30 VCCB penalty for defendant's conviction for aggravated assault upon George Brown under the Fourth Count. The trial court then merged defendant's conviction for aggravated assault upon George Brown and Darren Burgess under the Fifth Count with his conviction for aggravated assault by pointing a firearm at or in the direction of George Brown and Darren Burgess under the Sixth Count and committed defendant to the custody of the Commissioner for a term of 18 months with an 18-month period of parole ineligibility, which sentence was to run concurrently with the sentences imposed under the Third and Fourth Counts, and assessed a $30 VCCB penalty for both the Fifth Count and Sixth Count. Finally, the trial court committed defendant to a concurrent term of four years with a three-year period of parole ineligibility and assessed

a $30 VCCB penalty for unlawful possession of a weapon without first having obtained a permit to carry the same under the Twelfth Count. The aggregate sentence imposed upon defendant, therefore, was seven years with a three-year period of parole ineligibility and a total VCCB penalty of $150.*fn1

Thereafter, the trial court, apparently concluding that the sentence was illegal under State v. Yarbough, 100 N.J. 627, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), resentenced defendant separately with respect to each of the persons assaulted under the Third and Fifth Counts. The same terms that had previously been imposed were imposed as to each victim and the aggregate term of the amended sentence was still seven years with a three-year period of parole ineligibility and a total VCCB penalty of $150. Defendant appeals.

Defendant seeks a reversal of his convictions or, alternatively, a modification of his sentences on the following grounds set forth in his brief:

I. THE COURT SHOULD HAVE CHARGED THE JURY ON SELF-DEFENSE AND ITS FAILURE TO DO SO WAS HARMFUL ERROR MANDATING THAT THE CONVICTION BE REVERSED AND THE CASE BE REMANDED.

A. The Court Was Required To Instruct The Jury On Self-Defense Once Testimony Of The State's Witness Indicated That The Defendant May Have Believed He Was In Danger.

B. The Trial Court's Failure To Charge The Jury On Self-Defense Constitutes Harmful Error Requiring That The Convictions Be Reversed And The Case Be Remanded.

II. THE SENTENCE IMPOSED IS EXCESSIVE: THE COURT IMPROPERLY APPLIED THE STATUTORY SENTENCING GUIDELINES.

A. The Court Erred In Its Findings And Application Of The Aggravating Factors.

(i) The Trial Court Misapplied The First Aggravating Factor.

(ii) The Trial Court Erred In Setting Forth No Independent Factual Basis For Its Finding Of The Need For ...


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