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State v. Whittaker

December 06, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID R. WHITTAKER, DEFENDANT-APPELLANT.



Before Judges Pressler, Ciancia and Arnold.

The opinion of the court was delivered by: Arnold, J.S.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 13, 1999

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

Defendant David R. Whittaker appeals from convictions for various offenses including possession of a firearm, a revolver, with the purpose to use it unlawfully against Livey Sloan. We reverse the conviction for that offense because under the factual circumstances and the jury instructions defendant's acquittal of aggravated assault upon Livey Sloan with a firearm, the same revolver, bars the conviction. The judgment of conviction is affirmed as to all other crimes of which defendant was found guilty, and we remand for sentencing.

Defendant was charged with possession of a weapon, a machete, with the purpose to use it unlawfully against his son, Van Whittaker, N.J.S.A. 2C:39-4d (count one); aggravated assault with the machete upon Van Whittaker, N.J.S.A. 2C:12-1b(2) (count two); making terroristic threats to Van Whittaker, N.J.S.A. 2C:12-3a and/or b (count three); possession of a firearm, a revolver, with the purpose to use it unlawfully against Van Whittaker, 2C:39-4a (count four); aggravated assault by pointing a firearm at Van Whittaker, N.J.S.A. 2C:12-1b(4) (count five); possession of the revolver with the purpose to use it unlawfully against Livey Sloan, N.J.S.A. 2C:39-4a (count six); aggravated assault upon Livey Sloan with the revolver, N.J.S.A. 2C:12-1b(2) (count seven); aggravated assault by pointing a firearm at Livey Sloan, N.J.S.A. 2C:12-1b(4) (count eight); making terroristic threats to Livey Sloan, N.J.S.A. 2C:12-3a and/or b (count nine); making terroristic threats to Sharon Whittaker, N.J.S.A. 2C:12-3a and/or b (count ten); making terroristic threats to Valerie Whittaker, N.J.S.A. 2C:12-3a and/or b (count eleven); aggravated assault by pointing a firearm at Sharon Whittaker, N.J.S.A. 2C:12-1b(4) (count twelve); and aggravated assault by pointing a firearm at Valerie Whittaker, N.J.S.A. 2C:12-1b(4) (count thirteen).

Defendant was found guilty of unlawful possession of a machete as a lesser included offense of possession of the machete for an unlawful purpose (count one); terroristic threats (counts three and nine); possession of the revolver with the purpose to use it unlawfully against Livey Sloan (count six); and aggravated assault with the machete upon Van Whittaker (count two). Significantly, although charged in count seven with aggravated assault with the revolver upon Livey Sloan, the jury expressly found defendant guilty of aggravated assault with a machete upon Livey Sloan. Defendant was found not guilty on the remaining charges. Thus although defendant was found guilty of possession of the revolver with the purpose to use it unlawfully against Livey Sloan, he was found not guilty of aggravated assault upon Livey Sloan with that same weapon.

Possession of a firearm with the purpose to use it unlawfully against another is a Graves Act Offense N.J.S.A. 2C:43-6c. Thus, on count six, defendant was sentenced to six years imprisonment with a three-year period of parole ineligibility. On each of counts two, three, seven and nine, defendant was sentenced to three-year terms and on count one the court imposed nine-months imprisonment. These sentences were made concurrent to each other and to the sentence imposed on count six.

Defendant raises the following points on appeal:

POINT I THE TRIAL COURT ERRED IN PERMITTING THE DOMESTIC VIOLENCE COMPLAINT TO BE INTRODUCED INTO EVIDENCE SINCE THE PROCEDURE UTILIZED TO OBTAIN THE RESTRAINING ORDER WAS ILLEGAL AND PREJUDICED THE DEFENDANT AND HIS WITNESSES BEFORE THE JURY.

POINT II

THE TRIAL COURT ERRED IN CHARGING THE JURY IN A RECHARGE ON THE CONCEPT OF SIMPLE POSSESSION WHICH WAS NOT PART OF THE ORIGINAL CHARGE.

POINT III

THE EVIDENCE OF TRIAL WAS INSUFFICIENT TO SUPPORT A VERDICT OF GUILTY OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE.

POINT IV

THE VERDICT OF POSSESSION OF A HAND GUN FOR AN UNLAWFUL PURPOSE MUST BE REVERSED AS A MATTER OF LAW.

POINT V

THE TRIAL COURT ERRED IN DETERMINING THAT THE POLICE INTERROGATIONS OF THE WITNESSES CONSTITUTED EXCITED UTTERANCES PURSUANT TO RULE 803(c)(2).

POINT VI

THE TRIAL COURT ERRED IN REFUSING TO UTILIZE THE "ESCAPE VALVE" MECHANISM OF THE GRAVES ACT SENTENCING PROVISION WHEN INITIALLY REQUESTED OR IN THE ALTERNATIVE BY REFUSING TO REFER THE MATTER POST ...


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