On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No.05-05-0614.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Fuentes.
Defendant Ricky Jones was tried before a jury and convicted of first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon (baseball bat) for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). The court sentenced defendant on the robbery conviction to a fifteen-year term of imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; the court merged the convictions for possession of a weapon for an unlawful purpose with the unlawful possession of weapon, and imposed a concurrent term of eighteen months. Defendant was also ordered to pay the mandatory fines and penalties.
Defendant now appeals raising the following arguments.
INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
DEFENDANT'S SENTENCE IS EXCESSIVE.
We reject these arguments and affirm. We are compelled to remand this matter for resentencing, however, because the eighteen-month term imposed on the third-degree conviction for possession of a weapon for an unlawful purpose cannot stand.
On February 9, 2005, at approximately 4:00 p.m., defendant approached Sonia Alvarado as she waited for a taxi in an area outside her apartment in the City of Elizabeth. Brandishing a baseball bat, defendant told Alvarado: "Give me the bag, bitch." Defendant further told Alvarado that he would hit her with the bat if she did not comply. Alvarado took refuge behind a vehicle, and defendant did not pursue her. He simply moved away from her by walking across the street.
At this point, Alvarado called the police from her cellular telephone. A short time later, defendant returned to where Alvarado was standing. In response, Alvarado screamed and continued her attempts to evade defendant by keeping the vehicle between her and defendant. Alvarado noticed that defendant seemed to be more emotionally agitated this time than during the first encounter.
Immediately after Alvarado's scream, a man identified only as "Carlos" arrived at the scene. This prompted defendant to flee. According to Alvarado, although defendant seemed to be under the influence of alcohol, his speech was clear and readily understandable. He also ...