STATE OF NEW JERSEY VS. MAURICE L. TREAKLE (17-11-2379, ATLANTIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2309-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAURICE L. TREAKLE, a/k/a
LAWRENCE WELCH, JAMES
MAYS, MAURICE SMITH,
MAURICE TREAKLE, M.
LINWOOD TREAKLE, and
HAKIM,
Defendant-Appellant.
___________________________
Argued March 3, 2021 – Decided July 23, 2021
Before Judges Ostrer and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 17-11-2379.
Simone M. Silva-Arrindell, Designated Counsel,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Simone M. Silva-Arrindell,
on the briefs).
Nicole Lynn Campellone, Assistant Prosecutor, argued
the cause for respondent (Damon G. Tyner, Atlantic
County Prosecutor, attorney; Nicole Lynn Campellone,
of counsel and on the brief).
PER CURIAM
A jury convicted defendant Maurice Treakle of first-degree robbery,
N.J.S.A. 2C:15-1(a)(1); third-degree possession of a knife for an unlawful
purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a knife,
N.J.S.A. 2C:39-5(d). Treakle appeals, contending primarily that the trial court
committed plain error by omitting an identification charge and by delivering a
flawed accomplice-liability charge. We disagree and affirm.
I.
Defendant's convictions stem from a violent mugging in Atlantic City.
Late one afternoon, two men robbed Christopher Shirazi at knifepoint, seizing
Shirazi's cellphone and over three hundred dollars. The State contends that
defendant was one of the robbers. When police confronted him mere moments
after the robbery, he possessed Shirazi's cellphone and had just discarded a
knife.
At trial, Shirazi testified that on August 26, 2017, he had just completed
"a gambling binge" and was walking with "a beautiful girl" when "two guys . . .
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jump[ed]" him.1 One of them placed a hand on Shirazi's throat and menaced
him with a black-handled "simple pocket" knife. Terror-stricken, Shirazi gave
them his cellphone and $326.
When he testified at trial, Shirazi was not altogether clear about which
robber took which item. At one point, he agreed that one robber took the money
and the other took the cellphone. But he later said that because he was "watching
the knife," he "didn't know who took" either item.
In any case, after Shirazi relinquished his property, the knife-wielding
robber "clocked" Shirazi in the face, knocking him down. He fell on his hip, his
glasses fell to the side, and blood poured down his face. He shut his eyes (at
least partially), pretending to be unconscious. He recalled that about two
minutes passed.
Meanwhile, one of the robbers removed Shirazi's belt and patted his rear,
evidently to see if he hid other valuables there. At some point, Shirazi stealthily
looked for (and found) his glasses. When Shirazi got up from the ground,
"[b]oth men were there." Shirazi raced from the scene and yelled for help.
1
Shirazi's testimony was not always clear; at times, he appeared to contradict
himself. We attempt to derive a coherent narrative from his testimony.
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But within moments, he saw the robbers again. He proceeded to chase the
one he thought had threatened him with the knife, whom he believed to have his
money and cellphone.
Meanwhile, his call for help apparently prompted someone to call the
police to report a fight between two men. Officers Thomas Gilardi and David
White responded. Officer Gilardi testified that they were looking for the men
when defendant ran "up towards [the] police car," with Shirazi in hot pursuit.
Defendant was carrying a green hoodie, but after the officers stopped and exited
the car, he dropped the hoodie near the back of the car.
The officers separated the two men. Gilardi dealt with the distraught
Shirazi, who kept telling him that defendant had a knife. Gilardi's body-cam
recording showed Shirazi pointing to defendant and saying that defendant
"robbed him and had punched him."2 Defendant did not have a knife on his
person — but when Gilardi investigated the discarded hoodie, he found "a green
folding knife" "sort of just wrapped up underneath" it.
2
The video was admitted into evidence and shown to the jury without audio.
Gilardi narrated portions of the video without objection. Cf. State v. Singh, 245
N.J. 1, 17 (2021) (stating that it was error for a police detective to refer to a
person depicted in a surveillance video as "the defendant"). Neither party
included the video in the record on appeal.
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But defendant did have something else on his person: Shirazi's cellphone.
According to Officer White's testimony, defendant claimed that Shirazi "threw
the phone at him trying to assault him, and [defendant] caught it and put it in his
pocket."3
Shirazi was convinced that he had the right man. He testified that "the
one that was holding [his] neck with the knife" was the same man "that got
locked up by the police." However, during his direct examination, he was unable
to identify anyone in the courtroom as his assailant.
But after a break, Shirazi saw defendant returning to the courtroom in
shackles. Then, during cross-examination, Shirazi started pointing at defendant
while referring to his attacker as "[h]e" or "[h]im" — perhaps implying that at
that point, he did identify defendant as one of the robbers. The judge offered to
provide, or at least to "consider" providing, a corrective jury instruction, but
defense counsel declined, fearing that a corrective instruction "would just
magnify this identi[t]y issue."
In closing, defense counsel presented a misidentification defense. He
stated, "[T]here's no evidence that my client was there," and told the jurors that
3
In his statement professing innocence before sentencing, defendant asserted
that he had purchased the cellphone from a woman — allegedly, the woman who
had accompanied Shirazi.
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"even if by some stretch . . . my client was there," they had to determine "what
. . . his intent" was. To support the misidentification theory, defense counsel
made three points. First, Shirazi failed to identify anyone in the courtroom.
Second, defendant allegedly had the cellphone, not the money, but Shirazi
allegedly said that the knife-wielder took only the money; Shirazi also said that
he chased the knife-wielder. Third, police seized a green-handled knife, but
Shirazi said that the robber's knife had a black handle.
After the summations, the judge charged the jury. Two aspects of the
instructions are pertinent to this appeal: the court's accomplice-liability
instruction and the court's omission of an identification charge. While
explaining accomplice liability in the context of robbery, theft from the person
(a lesser-included charge), and the applicable weapons offenses, the judge
repeatedly used the phrase "and/or." He stated, "In order to find the defendant
guilty of the specific crimes charged as an accomplice, the State must prove . . .
that an unknown male committed the crime of robbery and/or theft from the
person and/or possession of a weapon for an unlawful purpose and/or unlawful
possession of a weapon," and "that this defendant solicited the unknown person
to commit those offenses and/or did aid or agree or attempt to aid him in
planning or committing those offenses." The State had to prove, too, "that this
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defendant's purpose was to [promote] or facilitate the commission of those
offenses," and that "defendant possessed the [relevant] criminal state of mind."
The judge instructed the jurors that if they found "the defendant, with the
purpose of promoting or facilitating the commission of the offenses, " to have
"solicited an unknown, identified [sic] other person to commit it, or aided or
attempted to aid him or her in planning or committing those offenses ," they had
to "consider him as having committed those offenses himself." Nonetheless, "to
convict the defendant as an accomplice to the specific crime alleged," the jurors
had to "find that the defendant had the purpose to participate in that particular
crime. He must act with the purpose of promoting or facilitating the commission
of the substantive offenses with which he is charged." They could also decide
that the defendant was not "an accomplice . . . [in] the specific crime charged,"
but instead acted "with the purpose of promoting or facilitating the commission
of some lesser offense than the actual crimes charged in the indictment."
In summarizing those instructions, the court repeatedly used the "and/or"
formulation:
In sum, in order to find the defendant guilty of
the crimes of robbery and/or theft from the person
and/or possession of a weapon for an unlawful purpose
and/or unlawful possession of a weapon the State must
prove the following beyond a reasonable doubt: (1) that
the unknown or unidentified male committed those
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crimes, that is, robbery and/or theft by unlawful taking
and/or possession of a weapon for an unlawful purpose
and/or unlawful possession of a weapon; (2) that this
defendant solicited the unknown person to commit
those crimes and/or did aid or agree to aid him in
planning or committing those offenses; (3) that this
defendant's purpose was to promote or facilitate the
commission of those offenses; (4) that this defendant
possessed the criminal state of mind that was required
to be proved against the person who actually committed
the criminal act.
If you find the State has proven each one of the
elements described above beyond a reasonable doubt,
then you must find the defendant guilty of robbery
and/or theft from the person and/or possession of a
weapon for an unlawful purpose and/or unlawful
possession of a weapon. If, on the other hand, you find
the State has failed to prove one or more of these
elements beyond a reasonable doubt, you must find the
defendant not guilty of robbery and/or theft from the
person and/or possession of a weapon for an unlawful
purpose and/or unlawful possession of a[] weapon.
The judge did not deliver the model charges on out-of-court or in-court
identification, but he did touch on the misidentification issue when delivering
the model charge on third-party guilt:
The defendant contends that there is evidence
before you indicating that someone other than he may
have committed the crime or crimes and that evidence
raises a reasonable doubt with regard to the defendant's
guilt. In this regard I charge you that a defendant in a
criminal case has the right to rely on any evidence
produced at trial that has a rational tendency to raise a
reasonable doubt with respect to his own guilt[].
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. . . [T]here is no requirement that this evidence
proves or even raises a strong probability that someone
other than the defendant committed the crime. You
must decide whether the State has proven the
defendant's guilt beyond a reasonable doubt, not
whether the other person or persons may have
committed the crimes.
Just before concluding the jury instructions, the judge invited counsel to
offer corrections or clarifications at sidebar. Although parts of the conference
were inaudible, the discussion generally related to an "identification charge."
Defense counsel evidently suggested that the court instruct the jury on Shirazi's
failure to make an in-court identification: "I know an identification was not
made in court and there's the identification charge. For the most part it's an
identification is made." Apparently ignoring Shirazi's out-of-court
identification, defense counsel continued, "In this case it was not made. It may
be a little too late to put it -- ". After an inaudible comment from one of the
prosecutors, defense counsel clarified that he was thinking of an instruction
regarding Shirazi's failure to make an in-court identification, stating, "No, for
his lack of identifying him in court." After some more not entirely audible
remarks, the prosecutor added that she believed the "10-page ID charge" applied
— evidently referring to the full charge that included out-of-court identification.
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Defense counsel did not respond to that statement, and the judge's subsequent
remarks were inaudible.
After sending the jurors to deliberate, the judge returned to the
identification issue, asking defense counsel, "I think you queried with regard to
an identification charge, but I think that applies to out of court identification. Is
that what we decided or?" Defense counsel again referred to an instruction on
the absence of an in-court identification: "Out of court or where the
identification was actually made in the court. When I was reading it I did not
see the reference made to a lack of in-court identification or not being able in
court to make that identification." The judge then said, "Well again, I let you
guys take a look at that charge before I read it to the jury. I mean at this point
they've been charged. I do believe, and it's appropriate as part of your argument
that you did make that argument."
Later, the jury sent the judge a question: "[I]f we believe the second
assailant was the heavy and held the knife, punched, et cetera, is our client guilty
as if it were him on all charges, or is he not guilty on all charges?" The
prosecutor asked the judge to "remind the jury that each offense with which the
defendant is charged needs to be considered in terms of accomplice liability,"
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and defense counsel asked the judge "to direct their attention to the lesser
included section" concerning "robbery and the theft from the person."
In response to the jury's question, the judge provided a clear instruction
on accomplice liability, eschewing the "and/or." He said, "[I]f you're not
considering that Mr. Treakle did it but whether the other person did it and Mr.
Treakle is responsible, number one, you have to decide whether the other guy
did it or not, okay? Did the other person commit the offense of robbery?" Then
he expanded his explanation, discussing individual charges and lesser-included
offenses:
There's robbery as it's defined in 1(a), and then 1(b) is
with the weapon. So you need to decide whether the
unknown co-defendant committed either of those
offenses. If not, then you need to decide whether the
unknown defendant committed the offense of theft.
You also need to decide in considering the weapons
charges whether the unknown defendant committed the
offense of possession of a weapon for an unlawful
purpose or unlawful possession of a weapon. So each
individual charge, number one, it's alleged that Mr.
Treakle did it, but it's also alleged that the co-defendant
did it and Mr. Treakle is responsible, and you need to
consider each one individually.
Now back to the bottom of 18, top of 19. Number
one, if we're considering accomplice liability, you have
to decide whether the accomplice committed the
offense that you're talking about. Number two, you
need to decide whether this defendant, who is Mr.
Treakle, solicited him to commit it or did aid or agree
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to attempt to aid him. So did Mr. Treakle, did the co-
defendant commit the offense and did Mr. Treakle
solicit or aid him in the commission of the offense.
Number three, you need to decide whether Mr.
Treakle's purpose was to promote or facilitate the
commission of the offense. And then number four, you
need to decide whether the defendant possessed the
criminal state of mind that's required to be proved
against the person who actually committed the offense.
So that is the shorthand language. The other
language that I want to direct your attention to is that
even if you decide that the co-defendant is guilty of let's
say first degree or second degree robbery, you could
still find Mr. Treakle guilty of one of the lesser included
offenses. If you find the co-defendant guilty of first
degree robbery, which again is the robbery with the
weapon, Mr. Treakle, assuming that the other
requirements of the statute have been met for
accomplice liability, he may not be guilty of first degree
robbery; he may be guilty of second degree robbery
because his accomplice status only goes to the robbery
but not the weapon. And in the event that you find him
not guilty of the second degree robbery, then you could
also find him guilty, you need to consider the theft
charge, which means that he is guilty as an accomplice
on a theft but not the robbery and all of those additional
elements.
Later that day, the jury returned guilty verdicts on all counts.
Defense counsel subsequently filed a motion for a new trial or a judgment
notwithstanding the verdict, or, in the alternative, for a judgment molding the
verdict. But the court denied the motions. The court also denied the State's
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motion for an extended term as a persistent offender, see N.J.S.A. 2C:44–3(a),
although defendant's extensive criminal record made him eligible for one.
On count one (first-degree robbery), the court sentenced defendant to
fifteen years with eighty-five percent parole ineligibility, to be followed by five
years of parole supervision. The court merged the possession-of-a-weapon-for-
an-unlawful-purpose charge, but not the simple possession charge, into the
robbery count. On the simple possession charge, the court sentenced Treakle to
eighteen months, concurrent to the fifteen years.
II.
Defendant raises the following five issues (which his reply brief largely
reiterates) on appeal.
POINT I
THE TRIAL COURT COMMITTED PLAIN ERROR
WHEN IT FAILED TO GIVE THE JURY AN
INSTRUCTION REGARDING THE STATE'S
BURDEN TO PROVE IDENTIFICATION. (NOT
RAISED BELOW).
POINT II
THE TRIAL COURT COMMITTED PLAIN ERROR
BY INCLUDING THE AMBIGUOUS PHRASE
"AND/OR" IN THE ACCOMPLICE LIABILITY
JURY INSTRUCTION, THEREBY DEPRIVING MR.
TREAKLE OF HIS RIGHT TO A FAIR TRIAL. (NOT
RAISED BELOW).
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POINT III
BECAUSE THE EVIDENCE WAS INSUFFICIENT
TO PROVE BEYOND A REASONABLE DOUBT
THAT MR. TREAKLE WAS GUILTY OF FIRST-
DEGREE ROBBERY, THE TRIAL COURT SHOULD
HAVE ENTERED A JUDGMENT OF ACQUITTAL
ON COUNT ONE.
POINT IV
IN THE ALTERNATIVE, THE APPEL[L]ATE
DIVISION SHOULD MOLD MR. TREAKLE'S
FIRST-DEGREE ROBBERY CONVICTION TO A
LESSER INCLUDED OFFENSE.
POINT V
FAILURE TO MERGE MR. TREAKLE'S WEAPONS
CONVICTIONS WITH HIS FIRST-DEGREE
ROBBERY CONVICTION WARRANTS
RESENTENCING. (PARTIALLY RAISED BELOW).
A.
We first consider defendant's contention that the trial court committed
plain error by failing to deliver an identification instruction.
A trial court must provide an identification instruction if "identification is
a 'key issue.'" State v. Cotto, 182 N.J. 316, 325 (2005) (quoting State v. Green,
86 N.J. 281, 291 (1981)). Identification is "a key issue" if "[i]t [is] the major
. . . thrust of the defense," especially if "the State relies on a single victim-
eyewitness." Ibid. (alterations in original).
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Failure to provide that instruction may be plain error. Id. at 326. Plain
error is error "sufficient to raise a reasonable doubt as to whether the error led
the jury to a result it otherwise might not have reached." State v. Macon, 57
N.J. 325, 336 (1971); see also State v. G.E.P., 243 N.J. 362, 389-90 (2020)
(applying this plain error standard).
Defendant bears the burden to show plain error, State v. Morton, 155 N.J.
383, 421 (1998), and this burden is not insignificant: even a truncated
identification instruction will, at times, foil a claim of plain error. Cotto, 182
N.J. at 326-27. Furthermore, "[i]f [a] defendant does not object to the charge at
the time it is given, there is a presumption that the charge . . . was un likely to
prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012).
An argument that an omitted identification charge was plain error "must
be evaluated 'in light of the overall strength of the State's case.'" State v.
Sanchez-Medina, 231 N.J. 452, 468 (2018) (quoting State v. Galicia, 210 N.J.
364, 388 (2012)); see also Cotto, 182 N.J. at 326 (stating that "[t]he
determination of plain error depends on the strength and quality of the State's
corroborative evidence," not "on whether defendant's misidentification
argument is convincing"). "[I]t is possible that the corroborative evidence
against a defendant may be sufficiently strong that the failure to give an
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identification instruction does not constitute plain error . . . ." State v. Davis,
363 N.J. Super. 556, 561 (App. Div. 2003).
In Cotto, the Court held that "the strength and quality of the State's
corroborative evidence rendered harmless any deficiency in the instruction and
preclude[d] a finding of plain error." Id. at 327. In that case, the victim
identified the defendant as her former boyfriend. Ibid. Other evidence
corroborated her identification: the defendant called the victim's child by name
and referred to a hiding spot where the victim kept money. Ibid. The Court also
noted that "[a]lthough the court . . . did not use the word 'identification'" in its
instruction, the judge did instruct the jury that the State had to prove that
defendant was the wrongdoer. Id. at 326-27.
By contrast, in Sanchez-Medina, the Court held that the State did not
present enough corroborating evidence to excuse the trial court's failure to
deliver an identification instruction. 231 N.J. at 469. In Sanchez-Medina, only
one of four victims identified the defendant; no forensic evidence linked the
defendant to the crime; victims' descriptions of their assailants and of the attacks
varied; and the defendant's statement to police (which he later recanted) offered
"some corroboration," but lacked details. Id. at 468-69. When combined with
the court's failure to tell the jurors "to ignore provocative evidence about
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defendant's immigration status," this error prompted the Court to vacate the
convictions and remand for a new trial. Id. at 469. The trial court also had
instructed the jury that the State had the burden to prove "defendant was the
actor who committed the crimes," id. at 468 n.3, but this clarification was not
enough to offset the court's omissions.
Here, misidentification was the major thrust of the defense. Therefore,
the court should have given an identification instruction, even without a defense
request. And Shirazi's in-court gesturing toward defendant increased the need
for such an instruction.
However, we are satisfied that the corroborating evidence was sufficient
to excuse the court's omission. Most significantly, within moments of the
robbery, defendant admitted to police that he had Shirazi's cellphone on his
person, and police found a "folding knife" that defendant had discarded near the
police vehicle. Defendant's possession of both the instrument of the robbery and
its fruits was compelling evidence corroborating Shirazi's out-of-court
identification. Defendant's claim that Shirazi threw his cellphone at him was
implausible at best. And, crucially, defendant not only possessed the knife, but
he also discarded it in police presence, thus demonstrating a consciousness of
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guilt. Shirazi's mistake regarding the knife-handle's color was a minor detail;
he could easily have mistaken dark green for black. 4
Furthermore, because the police did not engage in an identification
procedure, only instructions regarding so-called estimator variables, see State v.
Henderson, 208 N.J. 208, 247 (2011), would have been relevant in this case.
And, had the court educated the jury on how those variables affect identification,
the jury may well have been even more convinced that Shirazi correctly
identified defendant as one of his attackers. Although stress, the presence of a
weapon, and possible cross-racial bias may have affected Shirazi's ability to
accurately identify defendant as his assailant, other estimator variables may have
strengthened Shirazi's perception. The attack lasted long enough to enable
Shirazi to get a good look at his attacker, who was not wearing a disguise or
mask. The assailants were also close by and, because it was the afternoon, the
lighting was good. There was no time for Shirazi's memory to decay, and the
assailants were still nearby when Shirazi spotted them and gave chase. Finally,
no evidence suggests that Shirazi was intoxicated. See id. at 261-71 (discussing
estimator variables and their impact on identification accuracy).
4
The State described the knife as "dark in color"; the knife was in evidence at
the trial, thus permitting the jurors to draw their own conclusions. Neither party
included a color photograph of the knife in the record on appeal.
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Furthermore, during the third-party guilt instruction, the court instructed
the jury to consider the possibility that someone other than defendant committed
the crimes. And, in the accomplice-liability instruction, the court repeatedly
instructed the jury that, in order to render a guilty verdict, it had to find "this
defendant" guilty of the elements that the court outlined.
Therefore, we conclude the omission of an identification instruction was
not plain error.
B.
Next, we consider defendant's contentions regarding the accomplice-
liability instruction. We conclude that by using "and/or" repeatedly, the trial
court injected unacceptable ambiguity into its prepared instruction on
accomplice liability; however, the court cured any confusion by restating the
instruction, without "and/or," when responding to the jury's question.
The trial court's accomplice-liability instruction mirrored the instructions
that we found impermissibly confusing in State v. Gonzalez, 444 N.J. Super. 62,
73-76 (App. Div.), certif. denied, 226 N.J. 209, 209 (2016). Although the
Supreme Court denied certification, the Court commented that it agreed with our
ruling that "and/or" "injected ambiguity into the charge," while limiting "[t]he
criticism of the use of 'and/or'" in jury instruction "to the circumstances" of that
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case. Ibid. In Gonzalez, as here, there was no way to determine "whether, with
each utterance of 'and/or,' the jury was able to properly interpret it as 'and' when
the judge should have said 'and,' and 'or' when the judge should have said 'or.'"
444 N.J. Super. at 72. We found "the judge's repeated use of the phrase 'and/or'
. . . so confusing and misleading as to engender great doubt about whether the
jury was unanimous . . . or whether the jury may have convicted defendant by
finding the presence of less than all the elements the prosecution was required
to prove." Id. at 71. We would reach the same conclusion here, had the judge
said nothing more on the subject of accomplice liability.
But when deciding if there was plain error, we must read the charge "as a
whole" and avoid considering parts in isolation. State v. Jordan, 147 N.J. 409,
422 (1997). Here, the jury requested clarification of the accomplice-liability
charge, and the trial judge responded appropriately. See State v. Savage, 172
N.J. 374, 394 (2002) (stating "[i]t is firmly established that '[w]hen a jury
requests a clarification,' the trial court 'is obligated to clear the confusion'")
(second alteration in original) (quoting State v. Conway, 193 N.J. Super. 133,
157 (App. Div. 1984)). The court's clarification avoided the ambiguity that
plagued the initial charge and removed the possibility that the jury would render
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a non-unanimous verdict or a verdict based on fewer than all essential elements
of a crime.
C.
Defendant's arguments that the trial court should have entered a judgment
of acquittal or that the appellate court should mold the verdict on the first-degree
robbery charge lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2). Ample, if not overwhelming, evidence supported the jury's
verdict. See State v. Fuqua, 234 N.J. 583, 590-91 (2018) (stating that a trial
court must deny a motion to acquit even if, after "giving the State the benefit of
all of its favorable testimony as well as all of the favorable inferences which
reasonably could be drawn therefrom," the evidence is merely "sufficient" to
support the verdict); State v. Lopez, 187 N.J. 91, 103 (2006) (stating that where
there is enough "evidence to create a jury issue" regarding the greater offense,
"molding the verdict to the lesser offense . . . [is] unwarranted").
Lastly, we agree with defendant's contention (with which the State
concurs) that the trial court should have merged his fourth-degree unlawful-
possession-of-a-knife conviction with his robbery conviction. An essential
element of the fourth-degree offense is possession of an item "under
circumstances not manifestly appropriate for such lawful uses as it may have."
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N.J.S.A. 2C:39-5(d). Here, the only evidence of such circumstances pertained
to defendant's use of the knife in a robbery. Therefore, the two offenses should
merge, just as a conviction for possession of a weapon for an unlawful purpose
must merge into the substantive offense where the defendant's only unlawful
purpose is to use the weapon in committing the substantive offense. See State
v. Romero, 191 N.J. 59, 79-80 (2007) (requiring merger of conviction for
possession of a weapon for an unlawful purpose into conviction for robbery).
Affirmed as to conviction; remanded for resentencing. We do not retain
jurisdiction.
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