On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-10-9971.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2011
Before Judges Fuentes and Graves.
On January 14, 2009, a jury convicted defendant Salvador Guavara of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count two); third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); and fourth-degree unlawful possession of a weapon (the same knife), N.J.S.A. 2C:39-5(d) (count four). After merging count two into count one and count four into count three, the trial court imposed a nine-year prison term on count one with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced to a concurrent four-year term on count three. Appropriate statutory penalties and assessments were also imposed.
Defendant presents the following arguments on appeal:
THE NEED FOR A LESSER-INCLUDED-OFFENSE INSTRUCTION ON THIRD-DEGREE "SIGNIFICANT BODILY INJURY" AGGRAVATED ASSAULT WAS CLEARLY INDICATED BY THE RECORD; MOREOVER, THE PORTION OF THE SECOND-DEGREE AGGRAVATED-ASSAULT STATUTE WHICH ADDRESSES THE ACTUAL CAUSING OF SERIOUS INJURY SHOULD NOT HAVE BEEN INSTRUCTED TO THE JURY BECAUSE, AT WORST, SUCH INJURY WAS MERELY ATTEMPTED, NOT CAUSED. (NOT RAISED BELOW)
A. THE FAILURE TO CHARGE THIRD-DEGREE "SIGNIFICANT BODILY INJURY" AGGRAVATED ASSAULT AS A LESSER-INCLUDED OFFENSE.
B. THE STATE'S PROOFS DID NOT SUPPORT A JURY INSTRUCTION ON THE ACTUAL CAUSING OF SERIOUS BODILY INJURY.
THE MATTER SHOULD BE REMANDED FOR MERGER AND RESENTENCING.
After considering these arguments in light of the record and the applicable law, we have concluded that the jury was properly instructed, and we affirm defendant's conviction for second-degree aggravated assault. However, we remand for merger and resentencing.
Lillian Fuentes grew up in poverty in Honduras. She has known defendant since she was "a little girl," and defendant provided her with money to travel to the United States. Fuentes arrived in Texas in September 2005, and from there traveled to Plainfield, New Jersey, where she shared a room with defendant in a three-bedroom ...