June 5, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICKY JONES, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 2, 2007
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 did not appear to have any difficulty in walking or standing upright.
Two Elizabeth police officers responded to Alvarado's call. Upon their arrival they observed defendant on a nearby corner, with a baseball bat in his hands. The officers detained defendant, and Alvarado identified him as the man who had attempted to rob her moments earlier. The arresting officers testified that, although defendant was belligerent and "slightly intoxicated," he was otherwise alert and responsive to all of their questions. Alvarado testified that a few months after the incident, defendant went to her home and apologized for what he had done that day.
Defendant testified at the trial. He admitted that he had no legitimate reasons for carrying a baseball bat. He had consumed alcohol to the point that he could only remember having had some type of argument with a woman. Defendant's cousin also testified for the defense. He indicated that on the day of the incident, he witnessed defendant consume three-fifths of apple vodka, one strawberry Bacardi, three or four-fifths of regular Bacardi, and four or five forty-ounce beers.
Defendant's argument challenging the trial court's instructions to the jury lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Although it would have been preferable for the court to have included some reference to the evidence presented at the trial, we discern no legal error in the court's exclusive use of the model charge.
Finally, the eighteen-month sentence imposed by the court with respect to the third-degree conviction of possession of a weapon for an unlawful purpose must be vacated because the statutory sentencing range on a third-degree offense cannot be less than three years. N.J.S.A. 2C:43-6a(3).*fn1 We discern no legal basis to disturb the sentence imposed on the first-degree robbery, or the fourth-degree unlawful possession of a weapon. State v. Dalziel, 182 N.J. 494, 501-02 (2005); State v. Roth, 95 N.J. 334, 365-66 (1984).
Affirmed in part, reversed in part, and remanded for re-sentencing.