STATE OF NEW JERSEY VS. ANTHONY C. WYATT (17-07-1923, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.
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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
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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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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.
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Affirmed.
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