December 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 the purpose of protecting himself. At the trial, defendant admitted to being a drug dealer, and Brown admitted to being a former drug dealer.
Brown did not report this incident to the police until April 15, after he had two more run-ins with defendant. According to Brown and his fiancée Shamekia Simmons, on April 15 defendant and several companions surrounded Brown's house, shouting that they had brought "Rugers" (guns) and demanding that Brown come out and fight. At this point, Simmons called the police and Brown made a complaint concerning the assault that had occurred on April 13.
With respect to the incident on April 13, the jury convicted defendant of aggravated assault by committing simple assault with a deadly weapon, N.J.S.A. 2C:12-1b(2), but did not convict him of aggravated assault by attempting to cause serious or significant bodily injury. N.J.S.A. 2C:12-1b(1). The jury answered "no" to the question whether the victim and defendant were fighting by mutual consent. N.J.S.A. 2C:12-1a. However, the jury acquitted defendant of possession of a weapon for an unlawful purpose. N.J.S.A. 2C:39-4d.
On this appeal, defendant claims the trial judge erred in instructing the jury, over a defense objection, on the use of deadly force in self-defense. See N.J.S.A. 2C:3-4b(2). We disagree, substantially for the reasons stated by the trial judge in his oral opinion placed on the record on April 24, 2008. Defendant inflicted what a jury could have found to be serious bodily injury using a deadly weapon. See N.J.S.A. 2C:11-1c (defining deadly weapon); N.J.S.A. 2C:11-1a (defining serious bodily injury); State v. Howard, 125 N.J. Super. 39, 46 (App. Div. 1973). Therefore, we agree with the trial judge that it was appropriate to charge the jury as to self-defense using deadly force. However, even if the charge was error, it was harmless because defendant was acquitted of the "serious bodily injury" aggravated assault charge. See State v. Wilder, 193 N.J. 398, 412-18 (2008) (harmless error standard applies where jury is charged on a more serious offense, but defendant is acquitted on that charge).
Defendant also contends that the court erred in omitting the self-defense charge when re-reading the instructions on assault at the jury's request. Again, we disagree. In this case, the jury did not ask to be re-charged on self-defense. They sent out a question asking for the legal definitions of aggravated assault and simple assault, as well as harassment and terroristic threats. Immediately after re-reading the charges on aggravated assault and simple assault, the judge reminded the jury that they had not asked for a re-charge on self-defense. He told the jurors that he would re-read the self-defense charge to them if they asked him to. And, most importantly, he specifically reminded the jurors that self-defense applied as a defense to "all of the charges that I have just read to you." This was sufficient. See State v. Gallicchio, 44 N.J. 540, 549 (1965).
Further, the jury was well aware that self-defense was a crucial issue in the case, because it was the entire focus of defense counsel's summation. Self-defense was thoroughly covered in the court's original jury charge. And, in going over the verdict sheet, the judge reminded the jury that self-defense applied to all of the assault charges.
Defendant also contends that the prosecutor made an inappropriate comment about defense counsel in summation. We agree the comment was improper. However, viewed in the context of the entire trial, it does not warrant reversal of the conviction, particularly in light of the court's immediate curative instruction. See State v. Josephs, 174 N.J. 44, 124 (2002); State v. Nelson, 173 N.J. 417, 460 (2002); R. 2:10-2. Accordingly, we affirm defendant's conviction.
In appealing his sentence, defendant argues that the simple assault conviction should merge with the aggravated assault conviction. The State concedes this point. Defendant also objects to the periods of parole ineligibility imposed on the concurrent sentences. See N.J.S.A. 2C:43-6b. The State contends that the sentences were proper, but argues in the alternative that if we remand on the merger issue we should also direct the trial judge to set forth on the record the specific reasons for imposing the two-year periods of parole ineligibility for the aggravated assault and terroristic threat convictions.
Because the imposition of a discretionary period of parole ineligibility requires a separate statement of reasons, we also remand for that purpose. See State v. Kruse, 105 N.J. 354, 361-62 (1987). Further, in light of the plea agreement, the court should determine before re-imposing sentence whether imposing concurrent periods of parole ineligibility on the assault and terroristic threat convictions will result in defendant serving additional prison time, beyond the mandatory five years required by the "certain persons" sentence. That was apparently not the intent of the plea agreement and not the judge's intent in imposing sentence.
Conviction affirmed. Remanded for re-sentencing.
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