On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-02-0291.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Payne and Koblitz.
A jury found defendant guilty of armed robbery, N.J.S.A. 2C:15-1, a crime of the first degree; unlawful possession of a handgun, N.J.S.A. 2C:39-5b, a crime of the third degree; and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, a crime of the second degree. The sentencing judge merged the two weapons convictions into the armed robbery conviction and sentenced defendant to twelve years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. After reviewing the record in light of the contentions advanced on appeal, we affirm the conviction and reverse and remand for a new sentencing hearing.
Defendant was seventeen years old on September 18, 2005, when he and his uncle, co-defendant Laquan Hill, accosted two Hispanic men, brandishing a gun and demanding money. Laquan, one year younger than defendant, had the gun. He pulled the trigger, but apparently the gun was not loaded, as it did not discharge a bullet. When the victims realized the gun was unloaded, they began to resist. The defendants ran, with the victims in pursuit. Ultimately the victims lost track of Laquan, cornered defendant and began hitting him. Onlookers called the police. When the police arrived, the victims related what had happened, while defendant claimed he was jumped by these Hispanic men, and that the attack was completely unprovoked.
One of the victims identified co-defendant from a photographic array, and he was subsequently arrested. Defendant attempted to pass a note to his co-defendant at the Middlesex County Juvenile Detention Center. As read at the sentencing hearing, the note stated in pertinent part,
I know you [sic] going to court tomorrow. So just tell them exactly what happened. Only lie I told them was that the B.B. gun was mine and that I told you what to do. I told you to put the gun to the dude's head and everything. I tried my hardest to take all the weight because I had to put your name in it... I felt that, but I didn't want the cops to have both of us.
Defendant did not testify or present any other witness on his behalf at trial. On appeal, defendant, through counsel, raises the following arguments:
THE COURT ERRED WHEN IT FAILED TO CHARGE THE JURY, PURSUANT TO STATE V. HARMON, THAT IF DEFENDANT'S ALLEGED ACCOMPLICE ARMED HIMSELF AS A PRECAUTION AGAINST AN ATTACK BY ANOTHER, THIS CONSTITUTED A DEFENSE TO THE CHARGE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE. (Not Raised Below)
THE SENTENCE IS MANIFESTLY ...