On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 02-10-408.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2008
Before Judges Payne and Waugh.
Defendant Michael Russell appeals his convictions for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); third-degree conspiracy to commit burglary, N.J.S.A. 2C:2-6 and 2C:18-2 (count two); second-degree burglary, N.J.S.A. 2C:2-6 and 2C:18-2 (count four); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count five); third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count seven); second-degree aggravated assault with a weapon, N.J.S.A. 2C:12-1(b)(1) (count eight); and third-degree aggravated assault with a weapon, N.J.S.A. 2C:12-1(b)(2) (count nine). He also appeals his aggregate sentence of seven years in custody with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA). We affirm the conviction and aggregate sentence, but find that the conviction for possession of a weapon for an unlawful purpose in count six merged with the conviction for aggravated assault with a weapon in count nine.
The charges against Russell arose out of an incident that took place on July 15 and 16, 2002, in Phillipsburg. The following facts were adduced at trial. Early in the evening of July 15, Russell and Bashir Muhammad were drinking with friends. According to Muhammad, Russell told him that he knew of a place to obtain money and marijuana. The two men proceeded to an apartment at 29 Lewis Street in Phillipsburg. The apartment was occupied by Thomas Sloan and his girlfriend, Desiree Kise.
Russell, whose nickname was "Twiz," Kise, and Sloan were all known to each other.
At around midnight, Russell and Muhammad pulled their shirts over their heads and entered the second-floor apartment, which was unlocked. They were discovered by Sloan, who had come out of the bedroom after hearing a noise. According to Muhammad, Russell demanded that Sloan "give [him] the shit." Russell advanced toward Sloan, who grabbed his wrists. They began to grapple and headed toward the bedroom, at which time Sloan noticed that Russell was armed with a knife.
Russell then threatened to "kill" and "cut" Sloan. At that point, although Russell's face was still covered by his shirt, Kise said: "Is that you, Twiz? Is that you?" Russell said: "It's not Twiz, it's not Twiz." Kise then pulled the shirt from Russell's face and both she and Sloan recognized him. Kise attempted to dial 9-1-1, but Muhammad knocked the telephone from her hands.
Muhammad pressed Russell to leave, which they did. Sloan and Kise then contacted the police. Russell and Muhammad were arrested shortly thereafter. Russell had a knife in his possession when he was arrested.
Muhammad eventually confessed, and pled guilty to burglary, conspiracy to commit burglary, and hindering apprehension. Muhammad testified for the State. Because Muhammad appeared before the jurors in prison garb and shackles when he testified at Russell's trial in 2002, Russell's first conviction, which included a conviction for first-degree robbery, was reversed on appeal. State v. Russell, 384 N.J. Super. 586 (App. Div. 2006). Russell's second trial, which took place in October 2006, resulted in an acquittal on the robbery charge, as well as the convictions now on appeal.
Russell raises the following issues on appeal:
POINT I: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW).
POINT II: THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT VI CHARGING THIRD DEGREE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT VIII CHARGING SECOND DEGREE AGGRAVATED ASSAULT, AND FURTHER ERRED BY FAILING TO MERGE COUNT VIII INTO COUNT IV CHARGING SECOND DEGREE BURGLARY. (NOT RAISED BELOW).
POINT III: THE SENTENCE IMPOSED WAS ...