On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment Nos. 02-05-0710 and 02-05-0711.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2005
Decided December 13, 2005
Remanded By Supreme Court July 12, 2007
Resubmitted October 5, 2007
Before Judges A.A. Rodríguez and C.S. Fisher.
Following a two-day trial, defendant was convicted of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(b). He then entered a guilty plea to a separate indictment, which charged him with the second-degree offense of being a person prohibited from possessing a weapon, N.J.S.A. 2C:39-7(b). The trial judge sentenced defendant to a nine-year prison term with a five-year period of parole ineligibility on the conviction for violating N.J.S.A. 2C:39-7(b), and a concurrent four-year term on his conviction for violating N.J.S.A. 2C:39-5(b).
On appeal, defendant argued in Point I that the trial judge erred in denying his motion to suppress evidence. We agreed and reversed, without reaching the arguments contained in defendant's Points II and III. 381 N.J. Super. 572, 578 (App. Div. 2005). The State's petition for certification was granted, 188 N.J. 355 (2006), and the Supreme Court reversed our ruling on the suppression order and remanded the matter to us for consideration of the other issues raised by defendant in his appeal, 192 N.J. 1, 18 (2007), to which we now turn.
In his appeal, defendant raised the following arguments, which we did not address when the matter was first before us:
II. THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS CHARGE TO THE JURY (NOT RAISED BELOW).
A. THE TRIAL COURT'S INSTRUCTIONS TO THE JURY AS TO THE STIPULATION ENTERED BY THE DEFENSE CONSTITUTED PLAIN ERROR BECAUSE THE JURY WAS DIRECTED TO ACCEPT THE STIPULATION (NOT RAISED BELOW).
B. THE TRIAL COURT COMMITTED PLAIN ERROR BY DIRECTING THE JURY TO CONSIDER THE DEFENDANT'S "GUILT OR INNOCENCE" (NOT RAISED BELOW).
III. THE NINE (9) YEAR BASE TERM IMPOSED ON THE DEFENDANT'S CONVICTION FOR BEING A PERSON WHO IS PROHIBITED FROM POSSESSING A HANDGUN ...