                                NOT FOR PUBLICATION WITHOUT THE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 NO. A-2535-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VICTORIO S. WILLIAMS,

     Defendant-Appellant.
________________________

                    Submitted September 10, 2019 – Decided October 1, 2019

                    Before Judges Gilson and Rose.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 16-03-0833.

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

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Caroline C. Galda,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      A jury convicted defendant Victorio Williams of second-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b); second-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(4); and fourth-degree resisting arrest by flight,

N.J.S.A. 2C:29-2(a)(1). Defendant was sentenced to an aggregate prison term

of nine-and-a-half years, with five years of parole ineligibility. Specifically,

defendant was sentenced to eight years in prison, with forty-two months of

parole ineligibility, on the conviction for unlawful possession of a weapon; eight

years, with forty-two months of parole ineligibility, for the conviction of

possession of a weapon for an unlawful purpose; eighteen months, with eighteen

months of parole ineligibility, for the conviction of aggravated assault; and

eighteen months for the conviction of resisting arrest. All the sentences were

run concurrently, except for the sentence for aggravated assault, which was run

consecutively to the other sentences.

      Defendant argues that the trial court erred in failing to give the model jury

charge on the defense of third-party guilt. He also contends that his sentence

was excessive and that the conviction for aggravated assault should have merged

with his conviction for possession of a weapon for an unlawful purpose. We

reject his arguments concerning the jury charge and excessive sentence. We


                                                                           A-2535-18T3
                                        2
agree that his sentence for aggravated assault should have merged. Accordingly,

we vacate that sentence and remand with directions that that conviction be

merged with his conviction for possession of a weapon for an unlawful purpose.

                                     I.

      The charges against defendant and co-defendant Hasson Rich arose out of

events that took place on November 2 and 3, 2015. 1 We take the facts from the

record developed at the joint trial of defendant and his co-defendant.

      On the evening of November 2, 2015, nine members of the Newark Police

Department's firearms interdiction team conducted a proactive patrol in the area

of Fourth Avenue and North 12th Street in Newark. The officers were patrolling

in four unmarked police vehicles. When they turned on to North 12th Street at

approximately 11 p.m., they noticed a group of men standing on the side of the

street. One officer observed that one of the men appeared to be holding his

waistband as if he had a gun. The officers stopped and began to exit their

vehicles and two of the men began to run holding their waistbands as if they had

guns. The two men were later identified as defendant and co-defendant Rich.




1
  Rich has filed a separate appeal, which we address in the unpublished opinion
in State v. Hasson Rich, No. A-2477-17 (App. Div. Oct. 1, 2019).
                                                                         A-2535-18T3
                                          3
      Rich was almost immediately tackled by one of the officers and a struggle

ensued. With the assistance of other officers, Rich was arrested and found to be

in possession of a loaded handgun.

      Defendant ran away and several officers chased him. Detectives Anna

Colon and Abdullah Holmes both testified at trial and explained that they chased

defendant when he initially fled. They also both identified defendant as the

person they chased.

      Detective Colon explained that as she pursued defendant, he ran behind

several homes. Thereafter, she confronted defendant when he emerged from

behind one of the homes. She testified that defendant had a silver pistol and he

pointed it at her. In reaction, Detective Colon fired four shots at defendant, but

she did not think she hit him. Defendant ran away and Detective Colon lost

sight of him.

      Two other officers, Detective Holmes and Sergeant Ruane, heard gun

shots. Detective Holmes saw defendant with a gun in his hand and he fired

several shots at defendant. Sergeant Ruane saw Detective Colon fire her service

weapon, observed a man, and he twice fired his weapon at the man. Sergeant

Ruane did not think he shot the man, but he was able to identify the person he

saw as defendant.


                                                                          A-2535-18T3
                                        4
      Thereafter, the police brought in a K-9 unit to track defendant. They also

used a helicopter in their search for defendant. During that search, the police

found a silver and black 9mm pistol in one of the yards into which defendant

had run.

      Eventually, defendant was found under the porch of a home located on

North 11th Street. After negotiations, defendant was arrested at that location.

At the time of his arrest, defendant had a cut on one of his hands, but he had not

been hit by any of the bullets fired at him.

      Sergeant Ruane testified that he found blood in examining the scene where

some of the shots had been fired, other officers also found blood on a gate and

doorknob, and those officers testified that the amount of blood found was

substantial. Police did not investigate the source of the blood after defendant's

arrest. While searching for defendant, some officers communicated that there

might be a third suspect.

                                      II.

      On appeal, defendant argues that the jury instructions were defective and

his sentence was excessive and legally defective. Specifically, he contends:

            POINT I – THE OMISSION OF THE MODEL JURY
            INSTRUCTION ON THE DEFENSE OF THIRD
            PARTY GUILT DENIED DEFENDANT A FAIR
            TRIAL

                                                                          A-2535-18T3
                                            5
            POINT II – THE SENTENCE OF NINE AND ONE
            HALF     YEARS   WAS    EXCESSIVE,  THE
            CONVICTION OF AGGRAVATED ASSAULT
            SHOULD HAVE MERGED FOR SENTENCING
            PURPOSES, AND THE TRIAL COURT PROVIDED
            NO REASONS FOR THE CONSECUTIVE
            SENTENCE

      A.    The Defense of Third-Party Guilt and the Jury Instructions

      At trial, defendant argued that he was not the man who ran away from the

police. Instead, defendant contended that he had taken shelter under the porch

when he heard gun shots and that a third man, who was never captured, actually

ran from the police and had pointed his gun at one of the officers. In support of

that defense, defendant's counsel asserted that the amount of blood discovered

at the scene could not have come from defendant because he only had a small

cut on his hand.

      In instructing the jury, the trial court informed the jury that the State

always has the burden of proof and that the State must prove beyond a reasonable

doubt that defendant was the person who committed the alleged offenses. The

trial judge also instructed the jury that the defendant had no obligation to prove

anything, including whether the crime was committed by someone else. In that

regard, the instructions to the jury included the following:

            The defendants, as part of their general denial of guilt,
            contend that the [S]tate has not presented sufficient

                                                                          A-2535-18T3
                                        6
            reliable evidence to establish beyond a reasonable
            doubt that they are the persons who committed the
            alleged offenses. The burden of proving the identity of
            a person who committed a crime is upon the [S]tate.
            For you to find defendant guilty, the state must prove
            beyond a reasonable doubt that this person is the
            particular defendant is the person who committed the
            crime.

            The defendants have neither the burden nor the duty to
            show that the crime, if committed, was committed by
            someone else, or to prove the identity of that other
            person. You must determine, therefore, not only
            whether the [S]tate has proven each and every element
            of the offenses charged beyond a reasonable doubt, but
            also as to whether or not the [S]tate has proved beyond
            a reasonable doubt that that particular defendant is the
            person who committed it.

      Defendant did not object to that instruction at trial, nor did defendant

request that the court give a more particularized instruction, including the model

instruction for third-party guilt. See Model Jury Charge (criminal), "Third-Party

Guilt Jury Charge" (approved Mar. 9, 2015). On appeal before us, however,

defendant now argues that the omission of the model jury instruction on the

defense of third-party guilt denied him a fair trial and requires the reversal of

the jury verdict. We disagree.

      When a defendant fails to object to a jury charge, we review the charge

for plain error, and "disregard any alleged error 'unless it is of such a nature as

to have been clearly capable of producing an unjust result.'"             State v.

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                                        7
Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). Plain error in jury

charges is "'[l]egal impropriety in the charge prejudicially affecting the

substantial rights of the defendant and sufficiently grievous to justify notice by

the reviewing court and to convince the court that of itself the error possessed a

clear capacity to bring about an unjust result.'" State v. Camacho, 218 N.J. 533,

554 (2014) (alteration in original) (quoting State v. Adams, 194 N.J. 186, 207

(2008)).

      In reviewing a claim of error relating to a jury charge, "[t]he charge must

be read as a whole in determining whether there was any error." State v. Torres,

183 N.J. 554, 564 (2005) (citing State v. Jordan, 147 N.J. 409, 422 (1997)). In

addition, the error "must be evaluated in light 'of the overall strength of the

State's case.'"   State v. Walker, 203 N.J. 73, 90 (2010) (quoting State v.

Chapland, 187 N.J. 275, 289 (2006)). Furthermore, defense counsel's failure to

object to the jury instruction "gives rise to a presumption that he [or she] did not

view [the charge] as prejudicial to his [or her] client's case." State v. McGraw,

129 N.J. 68, 80 (1992).

      Here, viewing the charges as a whole, we discern no plain error in the trial

court's omission of the unrequested third-party guilt charge. The instruction

actually given to the jury informed them of defendant's denial of guilt and his


                                                                            A-2535-18T3
                                         8
argument that he was not the person who possessed the weapon and ran from

the police. Defense counsel's arguments, coupled with the actual charges given,

clearly informed the jury of defendant's contention that a third person was guilty

of the crimes. Thus, we discern no reversible error in the jury instructions .

      B.    The Sentence

      Defendant also challenges his sentence, making two related arguments.

He contends that the sentence was excessive and that his sentence for aggravated

assault should have merged with the sentence for possession of a firearm for an

unlawful purpose. We are not persuaded by the excessive sentence argument,

but we agree with the merger argument.

      We review sentencing determinations under a deferential standard. State

v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606

(2013)). We do not substitute our "judgment for the judgment of the sentencing

court." Lawless, 214 N.J. at 606 (first citing State v. Cassady, 198 N.J. 165, 180

(2009); then citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Instead, we

will affirm a 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


                                                                          A-2535-18T3
                                        9
            sentence clearly unreasonable so as to shock the
            judicial conscience."

            [State v. Miller, 237 N.J. 15, 28 (2019) (alteration in
            original) (quoting State v. Fuentes, 217 N.J. 57, 70
            (2014)).]


      At sentencing, the court found aggravating factors three, the risk of re-

offense; six, the nature and extent of defendant's prior record; eight, committing

an offense against an officer while on duty; and nine, the need for deterrence.

N.J.S.A. 2C:44-1(a)(3), (6), (8) and (9). The court found no mitigating factors

and determined that the aggravating factors substantially outweighed the lack of

mitigating factors.

      At sentencing defendant contended that he suffered from and was being

treated for schizophrenia. Before us, defendant argues that the trial court erred

in failing to give weight to mitigating factor four, that there were substantial

grounds to excuse or justify defendant's conduct, N.J.S.A. 2C:44-1(b)(4).

Defendant goes on to argue that his sentence was excessive, we should reverse

his sentence, and remand for resentencing.

      We reject defendant's arguments as they relate to an excessive sentence

and as to mitigating factor four. The sentencing court considered defendant's

arguments, but found that there were insufficient facts to support a finding of


                                                                          A-2535-18T3
                                       10
mitigating factor four under the circumstances of this case. We discern no abuse

of discretion in that determination. We also discern no abuse of discretion in

the trial court's findings of the aggravating factors, each of which was supported

by sufficient evidence in the record.       Consequently, we affirm defendant's

sentences for his convictions of unlawful possession of a firearm, possession of

a firearm for an unlawful purpose, and resisting arrest.

      Defendant's sentence for aggravated assault, however, should have

merged with his sentence for possession of a firearm for an unlawful purpose.

Indeed, the State concedes this point. "'When the only unlawful purpose in

possessing the gun is to use it to commit a substantive offense, merger is

required.'" State v. Tate, 216 N.J. 300, 308 (2013) (quoting State v. Diaz, 144

N.J. 628, 636 (1996)).

      Here, the jury was instructed that defendant's "unlawful purpose in

possessing the weapon was to commit the crime of aggravated assault by

pointing it at [the] detective." Accordingly, merger is required. We, therefore,

remand for resentencing so that the sentence for aggravated assault can be

merged with the sentence for possession of a firearm for an unlawful purpose.

      Defendant's convictions are affirmed and we remand for resentencing. We

do not retain jurisdiction.


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                                       11
