                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NOS. A-2241-18T2
                                                                     A-2270-18T2
                                                                     A-2311-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

AZIKWA RUSTIN,

     Defendant-Appellant.
__________________________

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ALQUAN HARRIS,

     Defendant-Appellant.
__________________________

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.
JOSEPH N. WRIGHT, a/k/a
NORMAN BLACK, and
CURTIS GORDON,

     Defendant-Appellant.
__________________________

           Submitted February 13, 2020 – Decided March 11, 2020

           Before Judges Nugent and DeAlmeida.

           On appeal from the Superior Court of New Jersey, Law
           Division, Somerset County, Indictment Nos. 18-01-
           0031, 18-01-0032 and 18-01-0033.

           Joseph E. Krakora, Public Defender, attorney for
           appellant Azikwa Rustin (Stefan Van Jura, Assistant
           Deputy Public Defender, of counsel and on the brief).

           Joseph E. Krakora, Public Defender, attorney for
           appellant Alquan Harris (Michele A. Adubato,
           Designated Counsel, on the brief).

           Joseph E. Krakora, Public Defender, attorney for
           appellant Joseph N. Wright (Frank M. Gennaro,
           Designated Counsel, on the brief).

           Gurbir S. Grewal, Attorney General, attorney for
           respondent (Steven A. Yomtov, Deputy Attorney
           General, of counsel and on the briefs).

PER CURIAM

     Defendants Azikwa Rustin, Alquan Harris, and Joseph N. Wright appeal

from the September 28, 2018 order of the Law Division denying their motion to


                                                                      A-2241-18T2
                                     2
suppress evidence for want of standing. After denial of their motion, defendants

entered guilty pleas to several charges arising from their participation in the

shooting of a motorist. We affirm the September 28, 2018 order.

      Wright also appeals from his December 20, 2018 judgment of conviction

and sentence. He argues he was convicted of multiplicitous charges, the trial

court improperly merged several counts, and he received an illegal and excessive

sentence. We remand the Wright appeal for resentencing. Because some of our

holdings with respect to Wright's sentencing are equally applicable to Rustin

and Harris, we remand those matters for resentencing, even though those

defendants did not appeal their sentences.

                                       I.

      We derive the following facts from the record. On October 26, 2017,

police officers responded to reports of gunshots in downtown Somerville. At

the scene, the officers found shell casings, tire marks, and damage to a wooden

staircase attached to a building.

      The officers noticed surveillance cameras around the exterior of a private

residence in the area of the shooting. The homeowner, Gregory Jewitt, told

officers he owned the surveillance system. He initially was uncooperative and

said the cameras had not been recording at the time of the incident. According


                                                                        A-2241-18T2
                                       3
to the State, Jewitt eventually agreed to allow officers to copy the video

recordings without a warrant.

      The video recordings depict the shooting. Defendants arrive in the area

in a vehicle driven by Ishmael Proctor, a codefendant not involved in this appeal.

They exit the vehicle. Rustin is armed with a semiautomatic handgun. He walks

with Wright to a second parked car.

      Rustin conceals his handgun in his sweatshirt and walks up the street

toward a third vehicle. He draws his handgun and begins firing at the vehicle,

causing the driver to lose control and crash into the side of a building. Rustin

runs toward the crashed vehicle and continues firing, striking the driver. Wright

pulls a handgun out of the parked vehicle. He runs toward Rustin while shooting

at the car under Rustin's fire. One of the rounds fired by Wright hits and injures

Rustin. Wright returns to the parked vehicle and puts an object, presumably his

gun, inside. Rustin gives his handgun to Harris.

      A grand jury indicted defendants in a single indictment, charging them

with: first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a)(1) and

N.J.S.A. 2C:5-2(a)(1) to (2); second-degree conspiracy to possess a firearm for

an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) and N.J.S.A. 2C:5-2(a)(1) to (2);

second-degree conspiracy to possess a handgun, N.J.S.A. 2C:39-5(b)(1) and


                                                                          A-2241-18T2
                                        4
N.J.S.A. 2C:5-2(a)(1) to (2); first-degree attempted murder, N.J.S.A. 2C:11-

3(a)(1) and N.J.S.A. 2C:5-1(a)(2) to (3); second-degree possession of a 9mm

Keltec handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); second-degree

unlawful possession of a 9mm Keltec handgun, N.J.S.A. 2C:39-5(b)(1); second-

degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-

4(a)(1); and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b)(1).

      Rustin was separately indicted on second-degree certain persons not to

have weapons, a 9mm Keltec handgun, N.J.S.A. 2C:39-7(b)(1), due to prior

convictions, and second-degree certain persons not to have weapons, a handgun,

N.J.S.A. 2C:39-7(b)(1), due to prior convictions.

      Wright was also separately indicted on first-degree unlawful possession

of a 9mm Keltec handgun due to a previous robbery conviction, N.J.S.A. 2C:39-

5(b)(1) and N.J.S.A. 2C:39-5(j); first-degree unlawful possession of a handgun

due to a previous robbery conviction, N.J.S.A. 2C:39-5(b)(1) and N.J.S.A.

2C:39-5(j); second-degree certain persons not to have weapons, a 9mm Keltec

handgun, due to prior convictions, N.J.S.A. 2C:39-7(b)(1); and second-degree

certain persons not to have weapons, a handgun, due to prior convictions,

N.J.S.A. 2C:39-7(b)(1).


                                                                      A-2241-18T2
                                       5
      Defendants moved to suppress the video recordings. They argued Jewitt

did not give valid consent to the warrantless search that resulted in police

obtaining the evidence.

      On September 28, 2018, the trial court entered an order denying

defendants' motion. In a written decision, the court found an evidentiary hearing

was not necessary because the material facts needed to decide whether

defendants had standing to challenge the seizure of the video recordings were

not in dispute. The court rejected defendants' argument they had a possessory

interest sufficient to confer standing. As the court explained, "[t]he video was

seized from the home of Mr. Jewitt, a third party. The video was taken by

surveillance equipment owned by Mr. Jewitt.            Therefore, none of the

[d]efendants have a possessory or proprietary interest in the video, the property

seized, [or] the place searched."

      In addition, the court concluded defendants did not have a participatory

interest in the seized evidence because they did not have some culpable role, as

principal, conspirator, or accomplice in criminal activity that generated the

evidence. The court held that while defendants' criminal acts were captured on

the recordings, that alone was insufficient to confer standing absent a connection

with the place searched and the items seized.


                                                                          A-2241-18T2
                                        6
      Finally, the trial court rejected defendants' argument they had automatic

standing to challenge the seizure of the video recordings because they had been

charged with possessory crimes. The court noted defendants were charged with

possession of weapons. However, "the evidence seized was not a gun, but a

video. As the [d]efendants were not charged with . . . possession of the seized

video, they cannot gain automatic standing." 1 Having determined defendants

lacked standing to challenge seizure of the video recordings, the court did not

decide whether Jewitt's consent was valid.

      Following denial of the motion to suppress, defendants entered guilty

pleas to all of the counts of the joint indictment, except the two first-degree

charges were amended to second-degree conspiracy to commit aggravated

assault, N.J.S.A. 2C:12-1(b)(1) and N.J.S.A. 2C:5-2(a)(1); and second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1). Rustin and Wright also entered

guilty pleas to the counts in the individual indictments issued against them.




1
   Defendants did not argue before the trial court the seizure of the video
recordings violated the Fourth Amendment. The trial court, therefore, did not
determine whether defendants had standing under the federal constitution. See
State v. Alston, 88 N.J. 211, 229 (1981) ("We . . . caution . . . trial courts that
when ruling on suppression motions in which standing may be in issue under
federal and state claims, the court should make explicit findings and legal
conclusions as to standing under both the Federal and State Constitutions.")
                                                                           A-2241-18T2
                                        7
      The trial court sentenced Rustin consistent with his plea agreement to an

eight-year prison term, with an eighty-five-percent period of parole ineligibility

pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for second-

degree aggravated assault.     On each of the remaining counts of the joint

indictment, the court sentenced Rustin to a five-year term of incarceration to run

concurrently with each other and with the sentence on second-degree aggravated

assault.2 The court also sentenced Rustin to two concurrent five-year terms of

imprisonment on the certain persons convictions in the individual indictment to

run concurrent to his sentence on the convictions in the joint indictment.

      The trial court sentenced Harris consistent with his plea agreement to a

five-year term of imprisonment, with an eighty-five-percent period of parole

ineligibility pursuant to NERA for second-degree aggravated assault. The court

merged the convictions on the remaining counts of the joint indictment with the

second-degree aggravated assault conviction.3


2
  Although the trial court's oral opinion does not refer to merger, the December
18, 2018 judgment of conviction merges all counts of the joint indictment with
the conviction of second-degree aggravated assault. The judgment of conviction
does not include sentences on any count merged with the conviction of second -
degree aggravated assault.
3
  In its oral opinion, the trial court imposed individual sentences on each of the
convictions it subsequently merged with Harris's conviction of second-degree


                                                                          A-2241-18T2
                                        8
      The trial court sentenced Wright consistent with his plea agreement to an

eight-year term of imprisonment, with an eighty-five-percent period of parole

ineligibility pursuant to NERA for second-degree aggravated assault. On each

of the remaining counts of the joint indictment, the court sentenced Wright to a

five-year prison term, with all sentences to run concurrent to each other and to

the sentence imposed for second-degree aggravated assault. The court also

merged those counts with the conviction for second-degree aggravated assault.4

      Under the separate indictment, on Count One the court sentenced Wright

to a twelve-year term of incarceration with a five-year period of parole

ineligibility for first-degree unlawful possession of the 9mm Keltec. The court

imposed the same sentence for first-degree unlawful possession of the handgun

to run concurrently with the sentence on Count One. For each of the second-

degree certain persons convictions, the court imposed a five-year term of

incarceration to run concurrent to the sentence on Count One. The sentences on




aggravated assault. The judgment of conviction, however, includes a sentence
only on the conviction for second-degree aggravated assault.
4
   Wright's December 20, 2018 judgment of conviction imposes an eight -year
term of incarceration on the conviction of second-degree aggravated assault, and
merges the remaining counts of the joint indictment with that conviction without
imposing a separate sentence on the remaining convictions.
                                                                        A-2241-18T2
                                       9
each of the counts in the individual indictment run concurrently with the

sentence imposed on the counts of the joint indictment.

      These appeals followed. Rustin makes the following argument for our

consideration:

            THE MATTER SHOULD BE REMANDED FOR AN
            EVIDENTIARY HEARING ON THE LAWFULNESS
            OF THE SEIZURE OF THE SURVEILLANCE
            VIDEO      BECAUSE         THE   TRIAL COURT
            ERRONEOUSLY FAILED TO REACH THAT ISSUE
            WHEN IT INCORRECTLY FOUND DEFENDANT
            LACKED STANDING. U.S. Const. amend. IV and
            XIV; N.J. Const. art. 1, par. 7.

      Harris makes the following argument for our consideration:

            THE TRIAL COURT'S DENIAL OF DEFENDANT'S
            MOTION    TO  SUPPRESS    WITHOUT   AN
            EVIDENTIARY HEARING ON THE GROUNDS
            THAT DEFENDANT LACKED STANDING WAS
            ERRONEOUS.

      Wright makes the following arguments for our consideration:

            POINT ONE

            THE TRIAL COURT ERRED BY DENYING
            DEFENDANT'S MOTION TO SUPPRESS THE
            ADMISSION   OF   THE    SURVEILLANCE
            RECORDING EVIDENCE WITHOUT FIRST
            HEARING FROM DEFENSE WITNESS GREGORY
            JEWITT.




                                                                    A-2241-18T2
                                     10
            POINT TWO

            INDICTMENTS 18-01-0031 AND 18-01-0033 ARE
            MULTIPLICITOUS, COUNTS WERE SUBJECT TO
            MERGER,     ILLEGAL   SENTENCES     WERE
            IMPOSED, AND THE AGGREGATE SENTENCE
            IMPOSED IS EXCESSIVE.

      Defendants' appeals were calendared back-to-back and we consolidate

them for the purpose of issuing a single opinion.

                                       II.

      "[A]n appellate court reviewing a motion to suppress must uphold the

factual findings underlying the trial court's decision so long as those findings

are supported by sufficient credible evidence in the record." State v. Elders, 192

N.J. 224, 243 (2007) (quotations omitted). We disregard only those findings

that "are clearly mistaken." State v. Hubbard, 222 N.J. 249, 262 (2015). We

review the trial court's legal conclusions on a motion to suppress de novo. State

v. Gandhi, 201 N.J. 161, 176 (2010).

      The Fourth Amendment and Article I, Paragraph 7 of the New Jersey

Constitution, protect "[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures . . . ."

U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7.       "Under our constitutional

jurisprudence, when it is practicable to do so, the police are generally required


                                                                          A-2241-18T2
                                       11
to secure a warrant before conducting a search" of a residence.          State v.

Hathaway, 222 N.J. 453, 468 (2015). A warrant to conduct a search will not be

issued except "upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched" and the persons and things to

be seized. U.S. Const. amend. IV; accord N.J. Const., art. I, ¶ 7; State v. Smith,

212 N.J. 365, 387 (2012).

      To have standing to challenge a warrantless search under the Fourth

Amendment, a defendant must have a legitimate expectation of privacy in the

place searched or the item seized. Byrd v. United States, ___ U.S. ___, 138 S.

Ct. 1518, 1526 (2018) (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978)).

"[N]othing short of ownership of, some possessory interest in, or control over

the" property searched and the item seized will suffice to confer standing under

the Fourth Amendment. Alston, 88 N.J. at 224. However, "the New Jersey

Constitution's prohibition against unreasonable searches and seizures affords

New Jersey citizens greater protection than that provided by the United States

Constitution." State v. Randolph, 228 N.J. 566, 582 (2017); Alston, 88 N.J. at

225-228. There are two circumstances in which a defendant may challenge the

lawfulness of a warrantless search under the State Constitution.




                                                                          A-2241-18T2
                                       12
        First, "a criminal defendant has standing to move to suppress evidence

from a claimed unreasonable search or seizure 'if he has a proprietary,

possessory or participatory interest in either the place searched or the property

seized.'" State v. Johnson, 193 N.J. 528, 541 (2008) (quoting Alston, 88 N.J. at

228).     A "participatory interest" in the property seized focuses on "the

relationship of the evidence to the underlying criminal activity and defendant’s

own criminal role in the generation and use of such evidence." State v. Mollica,

114 N.J. 329, 339 (1989). A participatory interest "connotes some involvement

in the underlying criminal conduct in which the seized evidence is used by the

participants to carry out the unlawful activity."          Id. at 340.    Having a

"participatory interest" provides "standing to a person who . . . had some

culpable role, whether as a principal, conspirator, or accomplice, in a criminal

activity that itself generated the evidence." Id. at 399-40.

        A participatory interest exists in things that are intentional by-products of

a defendant's criminal conduct or used by the defendant to effectuate the crime.

See Mollica, 114 N.J. at 334-40 (finding defendant had a participatory interest

in phone records of a co-defendant's hotel room, following gambling offenses,

because defendant participated in the illegal bookmaking, which included using

the co-defendant's hotel room phone); State v. Harris, 298 N.J. Super. 478, 481-


                                                                             A-2241-18T2
                                         13
84 (App. Div. 1997) (finding defendant had standing to challenge the seizure of

an answering machine, which contained a recorded telephone message between

co-defendants, from a co-defendant's apartment where the victim was killed);

State v. Biancamano, 284 N.J. Super 654, 659 (App. Div. 1995) (finding

defendant had a participatory interest in the drugs he sold to a third party found

on the third party).

      "That evidence implicates a defendant in a crime is not, in and of itself,

sufficient to confer standing." State v. Bruns, 172 N.J. 40, 58 (2002). "There

also must be at a minimum some contemporary connection between the

defendant and the place searched or the items seized." Ibid.

      Second, "a defendant has standing if he 'is charged with an offense in

which possession of the seized evidence at the time of the contested search is an

essential element of guilt.'" Johnson, 193 N.J. at 541 (quoting Alston, 88 N.J.

at 228).   For this approach to apply, a defendant must be "charged with

possession of the very item seized." State v. Curry, 109 N.J. 1, 8 (1987).

      Having carefully reviewed defendants' arguments in light of the record

and applicable legal principles, we agree with the findings of fact and

conclusions of law set forth in the trial court's written opinion accompanying

the September 28, 2018 order. We add the following comments.


                                                                          A-2241-18T2
                                       14
      It is undisputed defendants do not have ownership of, a possessory interest

in, or control over, Jewitt's home, his surveillance cameras, or the video

recordings created by those cameras. Defendants are strangers to Jewitt and

have no identifiable interest in his property.    They do not, therefore have

standing to challenge the seizure of the video recordings under the Fourth

Amendment.5

      We also agree with the trial court that defendants do not have a

proprietary, possessory, or participatory interest in Jewitt's home, his

surveillance cameras, or the video recordings those cameras produced. Jewitt

was not involved in defendants' criminal activity. No facet of defendants' crimes

took place at Jewitt's home.      The video recordings produced by Jewitt's

surveillance cameras were not objects used by defendants in carrying out their

crimes or intentional by-products of their criminal activity. While defendants'


5
   Defendants did not argue before the trial court they had standing to challenge
the seizure of the video recordings under the Fourth Amendment. Rustin,
however, cites the Fourth Amendment in the sole point heading of his brief. He
does not provide any legal argument or cite authority suggesting he has standing
under the Fourth Amendment. We could deem Rustin to have waived any
argument he may have under the federal constitution. "[A]n issue not briefed is
deemed waived." Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R.
2:6-2 (2020); Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J. Super.
384, 393 (App. Div. 2012) (deeming a contention waived when the party failed
to include any arguments supporting the contention in its brief). We address
Fourth Amendment standing for the sake of completeness.
                                                                         A-2241-18T2
                                      15
criminal acts may have been recorded by Jewitt's cameras, the recordings were

the product of Jewitt's installation and operation of security equipment intended

to protect his home.      The fact that the video recordings were created

simultaneously with the shooting is immaterial, given defendants' complete lack

of connection to the surveillance cameras. Nor do we find significant that the

video recordings are the only evidence the State may have to establish some

counts of the indictments. The relative value of the seized evidence is not

relevant to the standing analysis.

      We also are not persuaded by defendants' argument they have standing to

challenge seizure of the video recordings because they were charged with

possessory offenses. Defendants were not charged with possessing the video

recordings. They were charged with possessing weapons used in the shooting.

The weapons identified in the indictments are not the very items seized .

      We decline defendants' invitation to create an extension of standing under

the State Constitution to allow defendants to challenge the seizure of video

recordings of public acts made by surveillance cameras owned by private parties

not involved in the alleged criminal activity. Absent a holding from the Supreme

Court to the contrary, defendants present no convincing argument our

Constitution as presently interpreted provides inadequate protection to


                                                                            A-2241-18T2
                                      16
defendants who commit crimes in public places within the purview of lawfully

operating private security cameras.

      We turn to Wright's appeal of his judgment of conviction and sentence.

He makes several arguments which we address in turn.

A.    Multiplicity.

      Wright argues the two indictments against him were multiplicitous in

some respects. Count Six of the joint indictment charged Wright with second-

degree unlawful possession of a 9mm Keltec handgun. Count Eight charged him

with the same offense with respect to an unspecified handgun. Count One of

the individual indictment charged Wright with first-degree unlawful possession

of a 9mm Keltec pistol at the same time and place as alleged in the joint

indictment. Count Two of the individual indictment charged him with first-

degree unlawful possession of an unspecified weapon at the same time and place

as alleged in the joint indictment.    Wright argues these counts amount to

duplicative charges arising from the same conduct. In addition, Wright argues

the three conspiracy charges in the joint indictment were multiplicitous because

each alleged conspiracy was part of one overall agreement or continuous

conspiratorial relationship to commit aggravated assault.




                                                                        A-2241-18T2
                                      17
      "[T]he rule against multiplicity prohibits the State from charging a

defendant with multiple counts of the same crime, when defendant's alleged

conduct would only support a conviction for one count of that crime." State v.

Hill-White, 456 N.J. Super. 1, 11 (App. Div. 2018), certif. denied, 237 N.J. 188

(2019). "[A] defendant may not be tried for two identical criminal offenses in

two separate counts based upon the same conduct." State v. Salter, 425 N.J.

Super. 504, 515-16 (App. Div. 2012). "A court may remedy multiplicity by

setting aside all but one of the multiple convictions after the verdict, but the

better approach is to address the issue before trial by dismissing the improperly

duplicative counts of the indictment." Hill-White, 456 N.J. Super. at 12.

      We disagree with Wright's argument the unlawful possession charges in

the two indictments are multiplicitous. The joint indictment charges Wright

with collectively, unlawfully possessing both the 9mm Keltec pistol and an

unspecified handgun with his co-defendants. The individual indictment charges

Wright with possessing those weapons individually while having previously

been convicted of robbery. The conduct alleged differs. We see no error in

charging Wright with those offenses.

      With respect to conspiracy charges, "if a person conspires to commit a

number of crimes, he is guilty of only one conspiracy, so long as such multiple


                                                                         A-2241-18T2
                                       18
crimes are the object of the same agreement or continuous conspiratorial

relationship." N.J.S.A. 2C:5-2(c); State v. Kamienski, 254 N.J. Super. 75, 113-

15 (App. Div. 1992). We agree the three conspiracies of which Wright was

convicted were part of a single agreement to engage in aggravated assault.

However, merger of Wright's convictions on the conspiracy charges with his

conviction of second-degree aggravated assault will eliminate any harm to him.

      Wright also argues that during his plea allocution he admitted to

possessing only the 9mm Keltec handgun. While he acknowledges he admitted

Rustin also was in possession of a handgun during the shooting, he denies having

admitted he had the ability to exercise dominion or control over the gun

possessed by Rustin. He also denied having admitted to an agreement with his

codefendants to possess multiple guns. He argues that he therefore should be

convicted of only one count of a second-degree possession of a handgun for an

unlawful purpose and one count of unlawful possession of a handgun.

      We are satisfied that Wright's plea allocution supports the charges of

which he was convicted. He admitted he and his codefendants agreed to arm

themselves for an attack and that he and Rustin went to a vehicle to retrieve two

handguns, one of which Rustin took into his possession. He also admitted he

and Rustin thereafter fired shots into a vehicle with the purpose of causing


                                                                         A-2241-18T2
                                      19
serious bodily injury to its occupant. Based on his admissions, Wright was in

constructive possession of both handguns used in the attack and, under a theory

of co-conspirator liability, was responsible for Rustin's criminal acts arising

from possession of a handgun. N.J.S.A. 2C:2-6(b)(4); State v. Taccetta, 301

N.J. Super. 227, 243-44 (App. Div. 1997).

B.    Merger.

      Wright argues the trial court erred by imposing sentences on the

conspiracy, unlawful possession of a weapon, and possession of a weapon for

an unlawful purpose counts of the joint indictment despite having merged those

counts with the second-degree aggravated assault conviction.

      In addition, Wright argues the trial court erred by imposing sentences on

the second-degree unlawful possession counts of the joint indictment after

imposing separate sentences on the first-degree unlawful possession of a weapon

counts in the individual indictment. He argues N.J.S.A. 2C:39-5(j) creates an

enhanced penalty for violation of unlawful possession of a weapon based on a

prior conviction and is not a criminal offense separate and apart from unlawful

possession of a weapon under N.J.S.A. 2C:39-5. Wright argues that while he

can be convicted of the two first-degree unlawful weapon possession offenses




                                                                       A-2241-18T2
                                     20
in the individual indictment, he cannot also of be convicted of the two second -

degree weapon possession offenses in the joint indictment.

      Finally, Wright acknowledges his two second-degree unlawful possession

of a weapon counts, if not dismissed as multiplicitous, should not have merged

with his second-degree aggravated assault conviction.

      "Appellate courts review sentencing determinations in accordance with a

deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). "Merger is based

on the principle that 'an accused [who] has committed only one offense . . .

cannot be punished as if for two.'" State v. Miller, 108 N.J. 112, 116 (1987)

(alteration in original) (quoting State v. Davis, 68 N.J. 69, 77 (1975)). Merger

prohibits "double punishment for the same offense[,]" Davis, 68 N.J. at 77, and

"implicates a defendant's substantive constitutional rights." State v. Tate, 216

N.J. 300, 302 (2013) (quoting Miller, 108 N.J. at 116).

      "N.J.S.A. 2C:1-8(d) calls for merger when one offense is established by

proof of the same or less than all of the facts required to establish the

commission of another offense charged . . . ." State v. Mirault, 92 N.J. 492, 502

n.10 (1983). Our courts follow a "flexible approach in merger issues that

requires us to focus on the elements of the crimes and the Legislature's intent in

creating them, and on the specific facts of each case." State v. Brown, 138 N.J.


                                                                          A-2241-18T2
                                       21
481, 561 (1994) (quotations omitted). The Legislature may "split a single,

continuous transaction into stages, elevate each stage to a consummated crime,

and punish each stage separately." Davis, 68 N.J. at 78. "The cases not requiring

merger have had clear statutory differences illustrating legislative intent to

fractionalize a course of conduct." Tate, 216 N.J. at 312. The court must

determine whether the two offenses are the same and therefore merge, or

whether "each [offense] requires proof of an additional fact[,] which the other

does not[,]" making merger inapplicable. State v. Dillihay, 127 N.J. 42, 48

(1992) (first alteration in original) (quoting Blockburger v. United States, 284

U.S. 299, 304 (1932)).

      The State disagrees with Wright's merger arguments, apart from its

concession his two second-degree unlawful weapons possession convictions in

the joint indictment should not have merged with the aggravated assault count.

      We are persuaded by Wright's argument that all of the convictions in the

joint indictment, other than the second-degree unlawful weapon possession

convictions, should have merged with his second-degree aggravated assault

conviction prior to imposition of sentence.      The court erred by imposing

sentences on counts that were thereafter merged. On remand, the court should




                                                                         A-2241-18T2
                                      22
impose a sentence on only those convictions that survive merger. State v. Hill,

182 N.J. 532, 551 (2005).

      We also agree Wright's second-degree weapon possession convictions do

not merge with his second-degree aggravated assault conviction. See State v.

Deluca, 325 N.J. Super. 376, 392-93 (App. Div. 1999), aff'd, 168 N.J. 626

(2001). If the joint indictment was the sole indictment at issue, Wright would

be sentenced on those convictions. However, in light of the fact that Wright was

convicted of two counts of first-degree unlawful possession of a weapon

pursuant to N.J.S.A. 2C:39-5(j), which enhances the penalty for the offense, but

does not create a separate offense, it would be multiplicitous to sentence

defendant for both the second-degree convictions in the joint indictment and the

first-degree convictions in the individual indictment. The convictions of the

greater degree of the offense should survive. State v. Hammond, 231 N.J. Super.

535, 545 (App. Div. 1989). On remand, the trial court should dismiss the two

convictions of second-degree unlawful possession of a weapon in the joint

indictment consistent with this opinion.6


6
   Because the judgments of conviction in Rustin and Harris merge their
convictions of second-degree unlawful possession of a weapon with their
convictions of second-degree aggravated assault, we remand those appeals for
resentencing. In addition, to the extent the trial court intended to sentence


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                                      23
C.    Illegal Sentences.

      Wright argues the five-year sentences he received on the certain persons

convictions were illegal because N.J.S.A. 2C:39-7(b) provides that any sentence

on those counts must include a period of parole ineligibility of at least five years.

In addition, Wright argues that his judgment of conviction refers to N.J.S.A.

2C:16-1, the bias crime statute. Wright, however, was not charged with a bias

crime in either indictment. The reference appears to be a typographical error.

      The State agrees on both points. On remand, the court will impose a five-

year period of parole ineligibility on Wright's certain persons convictions in the

individual indictment. In addition, the judgment of conviction will be amended

to remove reference to the bias crime statute.7

D.    Excessive Sentence.

      We reject Wright's argument that his sentence is excessive. We review

sentencing determinations for abuse of discretion. State v. Robinson, 217 N.J.

594, 603 (2014) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)).              The




Rustin and Harris on any counts merged with their second-degree aggravated
assault convictions, we direct the trial court to sentence Rustin and Harris only
on the convictions that survive merger.
7
 On remand, the court shall also impose a five-year period of parole ineligibility
on Rustin's certain persons convictions.
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                                        24
sentencing court must "undertake[] an examination and weighing of the

aggravating and mitigating factors listed in [N.J.S.A.] 2C:44-1(a) and (b)."

Roth, 95 N.J. at 359; State v. Kruse, 105 N.J. 354, 359 (1987). Furthermore,

"[e]ach factor found by the trial court to be relevant must be supported by

'competent, reasonably credible evidence'" in the record. Fuentes, 217 N.J. at

72 (quoting Roth, 95 N.J. at 363).

      We accord deference to the sentencing court's determination. Id. at 70

(citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). We must affirm Wright's

sentence unless

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience."

            [Ibid. (alteration in original)(quoting Roth, 95 N.J. at
            364-65).]

      We are satisfied the judge's findings and balancing of the aggravating and

mitigating factors are supported by adequate evidence in the record, and

Wright's sentence is neither inconsistent with sentencing provisions of the Code

of Criminal Justice, except as noted previously, nor shocking to the judicial



                                                                        A-2241-18T2
                                      25
conscience. See Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010); State v.

Cassady, 198 N.J. 165, 180-81 (2009).

      To the extent we have not specifically addressed any of defendants'

remaining arguments it is because we conclude they lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

      The September 28, 2018 order of the Law Division is affirmed. The

matters are remanded for resentencing consistent with this opinion. We do not

retain jurisdiction.




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