                                NOT FOR PUBLICATION WITHOUT THE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-5517-17T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ANTHONY C. WYATT, a/k/a
ANTHONY C. WYATT SCALES,
ANTHONY C. SCALES-WYATT,
ANTHOY C. SCALES, and
RYAN E. MARRLOW,

     Defendant-Appellant.
____________________________

                   Submitted September 11, 2019 – Decided September 23, 2019

                   Before Judges Koblitz and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 17-07-1923.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Daniel Vincent Gautieri, Assistant Deputy
                   Public Defender, of counsel and on the brief).

                   Mary Eva Colalillo, Camden County Prosecutor,
                   attorney for respondent (Jason Magid, Assistant
                   Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Anthony C. Wyatt appeals from his June 21, 2018 conviction

after a jury trial for the second-degree crimes of unlawful possession of a gun,

N.J.S.A. 2C:39-5(b)(1), and certain persons previously convicted not permitted

to have weapons, N.J.S.A. 2C:39-7(b)(1). He was sentenced to five years in

prison with three and one-half years of parole ineligibility consecutive to five

years in prison without parole eligibility. The sentence was concurrent to an

eighteen-month sentence on a separate indictment not the subject of this appeal.

Defendant argues on appeal that, although he stipulated to a 2008 drug

conviction, because the certain persons indictment referred to a 2002

enumerated offense, his conviction should be reversed. He also maintains that

the trial judge gave insufficient reasons for imposing consecutive sentences.

After reviewing the record in light of the contentions advanced on appeal, we

affirm.

      Two police officers arrested defendant and recovered a gun he had thrown

in the bushes. He was indicted for three gun charges.1 The certain persons count

charged that he was in possession of a gun after having been convicted in 2002



1
  The indictment also charged defendant with receiving a stolen gun, but that
count was dismissed prior to trial.
                                                                       A-5517-17T4
                                       2
of a violation of N.J.S.A. 2C:35-5(a)(1), third-degree possession of drugs with

the intent to distribute, one of the enumerated offenses required for the certain

persons crime. N.J.S.A. 2C:39-7(b)(1). At trial, defense counsel stipulated that

defendant had been convicted in 2008 of third-degree possession of drugs with

the intent to distribute. The State also introduced a certified conviction for the

2008 crime.

       Defendant raises the following issues on appeal:

              POINT I:       WYATT'S CERTAIN-PERSONS
              CONVICTION MUST BE VACATED BECAUSE
              THE STATE NEVER PROVED AN ELEMENT OF
              THE OFFENSE AS CHARGED IN THE
              INDICTMENT – THAT WYATT HAD COMMITTED
              AN ENUMERATED DRUG OFFENSE IN 2002 (NOT
              RAISED BELOW).

              POINT II:      WYATT IS ENTITLED TO A
              REMAND FOR RESENTENCING BECAUSE THE
              JUDGE ERRONEOUSLY CONCLUDED THAT
              CONSECUTIVE       SENTENCES       WERE
              WARRANTED UNDER A STATE V. YARBOUGH
              ANALYSIS FOR UNLAWFUL GUN POSSESSION
              AND POSSESSION BY A "CERTAIN PERSON."

      Defendant raises for the first time on appeal that because the indictment

reflected an enumerated offense from 2002, while at trial the parties stipulated

he committed that offense in 2008, defendant was deprived of his right to a




                                                                         A-5517-17T4
                                        3
presentation before the grand jury. To merit reversal, plain error must be

"clearly capable of producing an unjust result." R. 2:10-2.

      Apparently, neither defense counsel, the prosecutor, nor the judge noticed

that defendant stipulated to a more recent prior drug crime than the one set forth

in the indictment. The presentence report reflects that defendant was also

convicted of the 2002 crime mentioned in the indictment. Defendant does not

dispute that he was previously convicted of both the enumerated 2008 crime

proved at trial as well as the similar older crime mentioned in the indictment.

We see no fundamental injustice in the State's proving the more recent crime

rather than the older crime.

      Nor do we see any harm in the judge informing the jury only that the State

had to prove a prior third-degree crime, rather than listing the statutory

enumerated crimes. Defendant did not object to the charge.            See State v.

Singleton, 211 N.J. 157, 182 (2012) ("If the defendant does not object to the

charge at the time it is given, there is a presumption that the charge was not error

and was unlikely to prejudice the defendant's case."). Nor did the charge have

the clear capacity to mislead the jury in these circumstances, when defendant

stipulated to his guilt to an enumerated crime.




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                                         4
      Defendant also argues that the judge failed to consider sufficient factors

to impose consecutive sentences. See State v. Yarbough, 100 N.J. 627, 643-44

(1985). The State moved for a discretionary extended term. Although defendant

met the statutory requirements for a discretionary extended term as a persistent

offender, N.J.S.A. 2C:44-3(a), the judge chose not to impose such a severe

penalty.

      Although each second-degree crime carried a maximum sentence of ten

years in prison, the judge sentenced defendant to consecutive five-year terms,

concurrent to another sentence defendant was serving. He imposed an aggregate

sentence of ten years with an eight and one-half year parole disqualifier. Given

the possible sentencing parameters, we "focus . . . on the fairness of the overall

sentence," finding the consecutive sentences were not unduly harsh. See State

v. Abdullah, 184 N.J. 497, 515 (2005) (quoting State v. Miller, 108 N.J. 112,

122 (1987)). In imposing the two sentences consecutively, the judge discussed

the Yarbough factors, relying on the fact that mere possession of a gun and the

certain persons offense were "predominantly independent of each other and

clearly do not reflect, even under the broadest of interpretation, a single aberrant

behavior." We are satisfied that the court correctly applied the guidelines for

imposing consecutive terms.


                                                                           A-5517-17T4
                                         5
Affirmed.




                A-5517-17T4
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