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State v. Kyles

December 17, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEVI R. KYLES, DEFENDANT-APPELLANT.



On appeal the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 07-09-2199 and 07-12-2816.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 7, 2009

Before Judges Reisner and Chambers.

On April 25, 2008, defendant was convicted by a jury of aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b; simple assault, N.J.S.A. 2C:12-1a; unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and terroristic threats, N.J.S.A. 2C:12-3. In July 2008, before sentencing, he pled guilty on a separate indictment charging him with second-degree certain persons not to have weapons. N.J.S.A. 2C:39-7b(1).

The trial judge sentenced defendant to five years in prison with a five-year parole bar for the "certain persons" offense. On the offenses which were the subject of the April 2008 jury conviction, the court imposed the following sentences all of which were concurrent to the five-year sentence: four years with a two-year parole bar for aggravated assault; one year for unlawful weapons possession; four years with a two-year parole bar for terroristic threat; and six months for simple assault.

On this appeal of the April 2008 conviction and sentence, defendant raises the following points for our consideration:

POINT I: THE ERRORS IN THE COURT'S INSTRUCTIONS TO THE JURY DENIED THE DEFENDANT OF A FAIR TRIAL.

POINT II: THE PROSECUTOR'S IMPROPER COMMENTS IN SUMMATION RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S RIGHT TO HAVE THE JURY FAIRLY DETERMINE THE CHARGES AGAINST HIM.

POINT III: THE CONVICTIONS ON COUNTS I AND II OF AGGRAVATED AND SIMPLE ASSAULT SHOULD HAVE BEEN MERGED PRIOR TO SENTENCING AND A SENTENCE IMPOSED ONLY ON THE AGGRAVATED ASSAULT CONVICTION. (Not Raised Below).

POINT IV: THE PAROLE INELIGIBILITY PERIODS IMPOSED ON COUNTS II AND IV OF INDICTMENT NO. 07-09-2199 ARE INCONSISTENT WITH THE MID-RANGE BASE TERMS AND SHOULD BE VACATED.

Having reviewed the record, we conclude that defendant's challenges to his conviction are without merit, and we affirm the conviction. The State concedes the merger issue and agrees we must remand for re-sentencing. On that remand, the trial court shall also reconsider the periods of parole ineligibility imposed on the aggravated assault and terroristic threat convictions and shall provide a specific statement of reasons if the court determines to reimpose those sentences.

I.

We summarize the most pertinent trial evidence. The appeal centers around events that occurred in Asbury Park on April 13, 2007 at around 1 a.m. The victim, Melvin Brown, testified that defendant cut Brown's face with a razor after Brown saw defendant selling drugs near his house and tried to chase defendant away from his property. The cut required twenty-five stitches and left a scar down the side of Brown's face. On the other hand, defendant testified that Brown attacked him first and he acted in self-defense, using a razor he carried only for ...


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