On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 04-03-0088.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2006
Before Judges Axelrad and R. B. Coleman.
Defendant Valerie M. Seals appeals from the judgment of conviction entered following a jury trial in which she was found guilty of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); first degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count two); third degree possession of a weapon, a barbecue fork, with the intent to use it unlawfully against another, N.J.S.A. 2C:39-4 (count three); third degree aggravated assault by causing bodily injury to another with a deadly weapon, N.J.S.A. 2C:12-1b(2) (count five); and third degree possession of a weapon, a sharp object, with the intent to use it unlawfully against the person of another, N.J.S.A. 2C:39-4a (count six). An additional charge of fourth degree tampering with evidence, N.J.S.A. 2C:28-6(1) (count four), was dismissed by the court prior to the submission of the remaining charges to the jury.
The court imposed an aggregate prison term of twenty-seven years with a twelve year, nine months period of parole ineligibility. In doing so, the court merged defendant's conviction for aggravated assault (count one) into the conviction for attempted murder (count two), as to which a term of fifteen years, subject to eighty-five percent parole ineligibility under the No Early Release Program (NERA), was imposed. On all of the remaining counts, four year sentences, running consecutive to each other, were imposed.
On appeal, defendant asserts error in the following respects:
POINT ONE: THE TRIAL COURT VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL WHEN HE FAILED TO CHARGE THE JURORS THAT THEY MUST DISREGARD THE DEFENDANT'S WRITTEN STATEMENT IF THEY FIND THE STATEMENT WAS NOT CREDIBLE OR CORROBORATED BY OTHER INDEPENDENT EVIDENCE; THE FAILURE OF COUNSEL TO REQUEST SUCH A CHARGE VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10 (NOT RAISED BELOW).
POINT TWO: THE DEFENDANT'S CONVICTIONS ON COUNT THREE AND SIX FOR THIRD-DEGREE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE MUST BE VACATED AS EACH MERGES WITH DEFENDANT'S CONVICTIONS FOR FIRST-DEGREE ATTEMPTED MURDER IN COUNT TWO AND THIRD-DEGREE AGGRAVATED ASSAULT IN COUNT FIVE (NOT RAISED BELOW).
POINT THREE: THE DEFENDANT'S FOUR CONSECUTIVE SENTENCES ARE MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
A. UNDER STATE V. YARBOUGH, THE DEFENDANT SHOULD NOT HAVE RECEIVED FOUR CONSECUTIVE SENTENCES.
B. THE COURT'S IMPOSITION OF THE BASE TERM SENTENCE IN EACH SENTENCE WAS BASED UPON A FLAWED WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS.
For the reasons that follow, we affirm the convictions, but we reverse and remand for merger of the convictions for possession of weapons for an unlawful purpose with the convictions for attempted murder and aggravated assault.
According to the State's proofs, on the evening of August 22, 2002, defendant drank substantial quantities of brandy and moonshine and she smoked two or three wet blunts, cigars containing marijuana rolled in embalming fluid. Around 1:00 a.m., she went to the home of her friend, Phyllis Stewart and took a barbecue fork and knife that Stewart had left on the kitchen counter. Defendant then went to the corner of Magnolia and Union Streets in Salem City and met up with a group of women. While ...