On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-02-0240-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and LeWinn.
Renard Reynolds (defendant) was indicted for second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1)(count one); third-degree aggravated assault with a deadly weapon, in violation of N.J.S.A. 2C:12-1(b)(2)(count two); and third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d)(count three). Following a two-day trial, a jury found defendant guilty, on count one, of the lesser-included charge of simple assault, and guilty on the remaining two counts as charged. At sentencing, the trial judge merged counts one and three into count two, and sentenced defendant to a term of five years. No period of parole disqualification was imposed.
Defendant now appeals, raising the following points:
POINT I: THE DEFENDANT'S CONVICTION ON THE CHARGE OF AGGRAVATED ASSAULT WITH A DEADLY WEAPON IN THE THIRD DEGREE, CONTAINED IN COUNT TWO OF THE INDICTMENT, WAS INCONSISTENT WITH HIS CONVICTION OF SIMPLE ASSAULT, AS THE LESSER-INCLUDED OFFENSE OF SECOND DEGREE AGGRAVATED ASSAULT, CONTAINED IN THE FIRST COUNT OF THE INDICTMENT, WAS ILLEGAL AND MUST BE VACATED AND DISMISSED*fn1
POINT II: THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL POINT III: THE SENTENCE IMPOSED WAS ILLEGAL BECAUSE IT WAS UNDULY EXCESSIVE GIVEN THAT THE DEFENDANT ONLY HAD TWO PRIOR ADULT CONVICTIONS,
THE MOST RECENT OF WHICH WAS TEN YEARS OLD Having reviewed the record, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2). Therefore, we affirm his convictions and sentence, adding only the following brief comments.
We find no inconsistency in the simple assault verdict on count one and the third-degree aggravated assault*fn2 with a deadly weapon verdict on count two. The jury could reasonably have found that defendant attempted to cause bodily injury (as opposed to serious bodily injury) to the victim in order to convict him of the lesser included offense of simple assault on count one. The jury could then have properly concluded that defendant attempted to cause that bodily injury with a deadly weapon, namely the rock in his hand. Defendant's acquittal of second-degree aggravated assault on count one does not preclude a separate verdict stemming from his use of the rock, in count two.
The trial judge's jury charge on these offenses was entirely proper. The judge's failure to hold a charge conference on the record is harmless error. R. 2:10-2.
Defendant's ineffective assistance of counsel claims are denied without prejudice to his right to pursue these claims through post-conviction relief. R. 3:22-1 to -12. The trial record does not "provide an adequately developed record upon which to evaluate defendant's claims[.]" State v. Castagna, 187 N.J. 293, 313 (2006).
Finally, we reject as wholly without merit defendant's argument that his sentence was excessive and, therefore, illegal. Defendant received the maximum term for the third-degree offense of which he was convicted. N.J.S.A. 2C:43-6(a)(3). He did not receive any parole disqualifier.
The sentencing judge found aggravating factors #3 and #9 applied. N.J.S.A. 2C:44-1(a)(3) and (9). In light of defendant's prior criminal history, that includes two prior convictions for indictable offenses, we cannot say the trial judge abused his discretion in deciding ...