STATE OF NEW JERSEY VS. DAVON COOPER (17-04-0267, HUDSON COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-2695-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DAVON COOPER,

     Defendant-Appellant.
_______________________

                   Submitted March 3, 2021 – Decided April 7, 2021

                   Before Judges Fuentes, Whipple, and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 17-04-0267.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Tamar Y. Lerer, Assistant Deputy Public
                   Defender, of counsel and on the briefs).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Steven Cuttonaro, Deputy Attorney
                   General, of counsel and on the brief).

PER CURIAM
      A Hudson County Grand Jury returned an indictment against defendant

Davon Cooper and co-defendant Aaron Enix, charging both men with murder,

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

2C:5-2 and N.J.S.A. 2C:11-3(a), 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).

      Cooper and Enix were tried together before a petit jury. The jury found

Cooper not guilty of murder and conspiracy to commit murder, and guilty of

second-degree unlawful possession of a handgun and second-degree possession

of a handgun for an unlawful purpose. The jury found Enix guilty of murder,

unlawful possession, and unlawful use of a handgun, and acquitted both men of

conspiracy to commit murder.

      On Cooper's conviction of second-degree possession of a handgun for an

unlawful purpose, the trial judge sentenced him to an extended term of sixteen

years with eight years of parole ineligibility pursuant to the Graves Act, N.J.S.A.

2C:43-6(c).   The judge did not impose a separate sentence on defendant's

conviction for unlawful possession of a handgun. The Judgment of Conviction




                                                                             A-2695-18
                                        2
dated January 28, 2019, shows the judge incorrectly merged this offense.1 We

are thus compelled to remand this matter to the trial court for resentencing.

      In this appeal, defendant argues the trial judge did not give the jury proper

unanimity instructions with respect to the issue of possession of a specific

firearm nor investigate alleged improprieties that occurred during jury

deliberations. After reviewing the record developed before the trial court, we

discern no legal basis to disturb the jury's verdict and affirm.

                                         I.

      In his opening statement to the jury, the prosecutor said that on November

27, 2016, two Jersey City Police Officers responded to an address on Claremont

Avenue to investigate a report of shots fired. When Officers Luis Rentas and

Patrick Canfield arrived at the scene, they found a man, later identified as

Rashay Washington, "[l]ying in a pool of his own blood, his body riddled with

bullets, steam still coming up from his body in the cold November air[.]" When

Rentas asked Washington who shot him, he responded: "Davon Cooper and

Aaron Enix."     The prosecutor characterized Washington's response as "the



1
  Our Supreme Court has made clear that unlawful possession of a handgun
under N.J.S.A. 2C:39-5(b) does not merge into possession of a firearm for an
unlawful purpose under N.J.S.A. 2C:39-4(a). State v. O'Neill, 

193 N.J. 148

, 163
n.8 (2007).
                                                                             A-2695-18
                                         3
words of a dying man identifying his killers."

      When Officer Rentas asked Washington for a second time who shot him,

the victim affirmed the identity of the shooters as "Cooper and Enix." Rentas

simultaneously wrote the names of the alleged shooters in his notepad. Officer

Canfield, who was next to Rentas, listed Cooper and Enix in his subsequent

police report as the two men Washington claimed shot him. The prosecutor then

asked Rentas the following questions with respect to Washington's physical

condition:

             Q. [Y]ou asked a question of Mr. Washington. What
             was the condition of Mr. Washington when you asked
             these questions?

             A. He was awake.

                   ....

             Q. Was he going in and out of consciousness at all?

             A. No.

             Q. Was he in shock?

             A. I’m not sure if he was in shock. I couldn’t tell you.
             But he was awake.

             Q. He was awake, alert, answering questions?

             A. Yes, he was.

             Q. And you asked him who shot him?

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            A. Yes. I asked him.

            Q. And Mr. Washington said Davon Cooper and Aaron
            Enix, they shot me?

            A. Yes.

      The medical records show Washington was shot sixteen times and died

fifteen days later in the hospital. Defense counsel argues that in the course of

cross-examination, the medical examiner conceded that Washington died from

pneumonia caused by the surgical team turning him during surgery, in disregard

of standing medical orders not to turn him under any circumstances. However,

defendant did not call a forensic pathologist to support this theory of causation.

Furthermore, the record shows the State's medical examiner did not waiver from

his original opinion that decedent's cause of death was from multiple gunshot

wounds.

      Jersey City Police Department Sergeant Douglas Paretti was assigned to

the "cease fire unit" as a detective at the time of the shooting. This unit was

responsible for investigating "all the non-fatal shootings" that occur in Jersey

City and gathering evidence to assist the Hudson County Prosecutor's Office

when the cases involved fatalities. On the date and time of the shooting, Paretti

responded to Claremont Avenue to canvass the scene for evidence. He testified


                                                                            A-2695-18
                                        5
that he recovered sixteen spent shell casings and six projectiles.

      According to Officer Canfield, Washington not only identified his

attackers by name, he told him that "the suspects ran south on Clerk Street."

This account of Washington's statement describing the direction his assailants

took immediately after the shooting was corroborated by Officer Rentas. In

response, Paretti walked to Clerk Street, which was a few minutes away from

Claremont Avenue. He described this area of Jersey City as a "residential

neighborhood" with "lawn family homes" in a "tree-lined street." Paretti was

met by two fellow police officers who told him they found two handguns in an

empty lot on the south side of Clerk Street.

      Officer Terrell Darby was one of the police officers who responded to the

call of "shots fired" on November 27, 2016. At that time, Darby had been "on

the job"2 for only three months. Darby testified he was in a marked police van

equipped with overhead lights and sirens when he heard "a call to another unit

of shots fired." Although the call was not directed at him, it was the policy "to

back each other up" in dangerous situations. At this point of Darby's testimony,

the prosecutor plays a videorecording that shows "a van with lights and sirens


2
 "On the job" is a colloquialism to describe when an officer joined the force or
when he or she is officially functioning in a law enforcement capacity.


                                                                           A-2695-18
                                        6
entering that picture." Darby identified the van as the police vehicle he was

using that night, with Officer Guadalupe as the driver.

      Darby explained that when he and Guadalupe arrived at the crime scene,

they noticed someone was attending to the victim. Although a recent member

of the police force, Darby testified that officers are "trained . . . to look beyond

the scene and canvass for any possible evidence."           Thus, he noticed "an

unidentified male [who] pointed down Clerk Street and said two guys,

burgundy[.]" Darby also noticed that Officer Rentas was pointing in the same

direction. Darby testified that Guadalupe drove the police van down Clerk

Street. As they approached Wilkinson Avenue, they noticed two men 3 walking

in front of the school located at the intersection of Clerk Street and Wilkinson

Avenue.

      At this point in Darby's direct testimony, the prosecutor asked him to step

down from the witness box and place an "X" on a map to indicate where

defendants were located. This is narratively described on the record as "about

halfway down the block." The audio record of the police transmission of "shots

fired" made on 9:22 p.m., and Darby's radio transmission reporting coming into



3
 At the prosecutor's request, Officer Darby identified Cooper and Enix in open
court and in the presence of the jury, as the two men he saw that night.
                                                                              A-2695-18
                                         7
contact with Cooper and Enix, established that Jersey City Police apprehended

defendants within two minutes. Darby provided the following description of

defendants' attire: "Aaron Enix had a burgundy top, like a sweater, and burgundy

pants. And Davon Cooper had a black hat, burgundy colored top with, like, black

on his shoulders, and black pants, like Adidas style." The clothing described by

Darby matched the clothing worn by the assailants depicted in the video footage

taken by surveillance cameras in the area of the crime scene.

        Before the start of trial, the State moved to admit Washington's statement

to Officer Rentas, in which he identified Cooper and Enix as the men who shot

him. The State argued this was admissible as an exception to the hearsay rule

under N.J.R.E. 804(b)(2), which states: "In a criminal proceeding, a statement

made by a victim unavailable as a witness is admissible if it was made

voluntarily and in good faith and while the declarant believed in the imminence

of declarant's impending death." After considering the arguments of counsel,

the trial judge granted the State's motion and explained the basis for his ruling

in a comprehensive memorandum opinion. Cooper does not challenge the

judge's decision to admit this evidence.4




4
    Enix challenged the admissibility of this evidence in his appeal.
                                                                            A-2695-18
                                          8
                                        II.

      Against this factual backdrop, defendant raises the following arguments

in this appeal.

             POINT I

             THE FAILURE TO GIVE A SPECIFIC UNANIMITY
             INSTRUCTION IN REGARD TO WHICH WEAPON
             DEFENDANT     POSSESSED     NECESSITATES
             REVERSAL OF DEFENDANT’S CONVICTIONS.

             POINT II

             THE TRIAL COURT’S FAILURE TO CONDUCT A
             VOIR DIRE OF A JUROR WHO REACHED OUT TO
             THE COURT AND THE STATE BECAUSE HE HAD
             CONCERNS ABOUT THE DELIBERATIONS WAS
             ERROR.

             POINT III

             THE SENTENCE IS EXCESSIVE.

      We begin our analysis by addressing defendant's argument attacking the

viability of the jury's verdict based on the judge's failure to instruct the jurors

that they needed to unanimously agree Cooper: (1) possessed one of the two

handguns the police found near the crime scene; and (2) identify the specific

handgun. The State agrees that the New Jersey State Constitution requires

criminal convictions to be based on unanimous jury verdicts. N.J. Const. art. I,



                                                                             A-2695-18
                                        9
§ 9. This bedrock principle is also codified in Rule 1:8–9. However, our

Supreme Court has also made clear

            that courts should provide "specific unanimity"
            instructions—that is, impose a requirement that the jury
            unanimously agree on the facts underlying the guilty
            verdict—when there is a specific request for those
            instructions and where there exists a danger of a
            fragmented verdict. [Absent such request,] the failure
            to provide a specific unanimity instruction in the
            absence of such a request will not necessarily constitute
            reversible error.

            [State v. Gandhi, 

201 N.J. 161

, 192 (2010) (emphasis
            added).]

      Thus, when a defendant asserts on appeal that the trial court should have

given a particular unanimity charge, "[t]he core question is, in light of the

allegations made and the statute charged, whether the instructions as a whole

[posed] a genuine risk that the jury [would be] confused." State v. Parker, 

124

N.J. 628

, 638 (1991) (alterations in original) (internal quotations omitted).

When confronted with this issue, appellate courts should determine "whether the

acts alleged are conceptually similar or are 'contradictory or only marginally

related to each other,' and whether there is a 'tangible indication of jury

confusion.'" 

Gandhi, 201 N.J. at 193

(quoting 

Parker, 124 N.J. at 639

). Without

a reasonable basis to support a claim of confusion, the jury is presumed to have



                                                                          A-2695-18
                                      10
understood the trial court's instructions. State v. Vasquez, 

265 N.J. Super. 528

,

547 (App. Div. 1993) (citing State v. Manley, 

54 N.J. 259

, 270 (1969)).

      Here, Cooper was charged with two separate offenses related to the

possession of a handgun. The verdict sheet asked the jury to find: (1) whether

Cooper possessed "a certain weapon, that is, a handgun, with purpose to use it

unlawfully against the person or property of another;" and (2) whether he

"knowingly did possess a handgun, without first having obtained a permit to

carry same."

      The charge conference is a critically important part of the criminal trial.

"Any party, at or before commencement of trial, may submit written requests

that the court instruct the jury on the law as set forth in the requests. As to issues

not anticipated prior to trial, any party may submit written requests before

closing arguments." R 1:8-7(b). Defense counsel did not ask the trial judge to

give the jury an unanimity instruction. Our standard of review is thus codified

in Rule 2:10-2, which directs us to disregard any error or omission "unless it is

of such a nature as to have been clearly capable of producing an unjust result[.]"

      The State argues that these two handgun-related charges are cognate. The

trial judge instructed the jury on the legal concepts of actual and constructive

possession.    As part of his summation, the prosecutor played for the jury


                                                                                A-2695-18
                                         11
surveillance footage of the shooting that showed the clothes the assailants wore

at the time they shot Washington. The prosecutor asked the jury to notice the

similarities between the clothing worn by one of the assailants and Cooper's

attire at the time he was arrested. The prosecutor urged the jurors to

            [f]ollow the evidence, ladies and gentlemen, follow the
            evidence. This is what Davon Cooper was wearing
            when he was arrested, a North Face bubble jacket,
            exactly as you see.

            And what was he wearing underneath? The hood. The
            video, the clothing, it speaks for itself. This is not
            coincidence, ladies and gentlemen, this is evidence,
            evidence of guilt.

            And look at what he’s doing at this particular moment.
            He’s taking something out of his right pocket. I’ll argue
            to you it has the shape and characteristics of a gun.
            Maybe they were thinking about it, but maybe he was
            thinking at this moment, maybe I’ll throw it out there.
            But then they noticed just two houses down and empty
            field, and that seemed like a better place to dump a gun,
            which is exactly what they did.

      The jury was free to accept or reject the prosecutor's characterization of

what was depicted in the video. However, it is entirely plausible to infer from

this evidence that Cooper possessed one of the handguns recovered by the police

near the crime scene. There is no factual or legal basis to conclude that the

absence of an unanimity charge under these circumstances was clearly capable

of producing an unjust result. R. 2:10-2. Additionally, the fact that Cooper was

                                                                          A-2695-18
                                      12
acquitted of murder and conspiracy to commit murder and convicted of the

possession of handgun charges is not indicative of jury confusion. "Each count

in an indictment is regarded as if it was a separate indictment." State v. Banko,

182 N.J. 44

, 53 (2004) (quoting Dunn v. United States, 

284 U.S. 390

, 393

(1932)).

      We will next briefly consider the post-conviction event that Cooper argues

revealed a specter of impropriety over the jury's deliberations that warranted a

more thorough investigation than the one conducted by the trial judge. The

record shows that the matter came to light days after the trial ended, when one

of the deliberating jurors telephoned the trial judge's chambers and the office of

the attorney who represented Enix. The trial judge provided the following

account of what occurred on the record:

            After the jury reached a verdict [on Thursday], the
            following Monday, . . . when I came in that day, I was
            told my chambers had received a call from an
            individual who identified himself as our Juror Number
            14. During the trial that was one of the deliberating
            jurors.

            [He] indicated to my secretary that he wanted to speak
            to me. He was not happy with the verdict the jury had
            rendered and wanted to know what to do about it.

            I didn’t take any action at that time, because obviously
            I was not going to engage in an ex parte conversation
            with the juror.

                                                                            A-2695-18
                                       13
            Before I even had the opportunity to reach out to
            counsel, I believe [Enix's counsel] contacted my
            chambers indicating he had also received . . . a phone
            call from the individual identifying himself as Juror
            Number 14[.]

                  ....

            So, I say that, because I want the record to be clear that
            I don’t in any way believe [Enix's counsel] did anything
            wrong by taking the phone call that came into his office,
            because the person had initially identified himself by
            his name, not any involvement in the trial.

      Enix's trial counsel also made clear for the record that his interaction with

Juror 14 was both brief and short on details. Counsel stated he initially believed

the caller was someone who had read about the case in the newspaper and was

upset with the outcome of the trial because he said "I don’t agree with the

verdict" several times. According to Enix's counsel:

            I inquired as to well, who are you, and he indicated that
            he was Juror Number 14, the only African American
            juror. I don’t even remember if even he gave me his
            name on the phone.

            Then he basically went through just a dissertation of
            what took place in the jury room, 5 and at that point I

5
  Later in the course of this impromptu hearing, Enix's counsel elaborated on
this statement. He said Juror 14 told him "one juror was pregnant, and another
juror had poison ivy . . . [and again] said he was dissatisfied." According to
Enix's counsel, he asked Juror 14: "why did you say guilty when you stood up?
And he said, well, that’s what I felt at the time."
                                                                             A-2695-18
                                       14
            immediately stopped him, and said you need to contact
            [the trial judge's] chambers, and that was essentially the
            conversation, maybe a thirty second conversation.

      Enix's counsel stated for the record that he immediately telephoned the

prosecutor and the attorney who represented Cooper and relayed to them the

substance of the conversation he had with Juror 14. At this point, the trial judge

asked the attorneys: "Is there anyone asking me to take any remedy?" The

prosecutor stated for the record that he accepted the veracity of Enix's counsel's

account of what was said during his brief telephone conversation with Juror 14

and did not see any factual or legal basis to take any action. Cooper's counsel

did not make any statement.

      The trial judge began his analysis by citing Rule 1:16-1, which states:

"Except by leave of court granted on good cause shown, no attorney or party

shall directly, or through any investigator or other person acting for the attorney,

interview, examine, or question any grand or petit juror with respect to any

matter relating to the case." The judge concluded there was no legal or factual

basis to call back and interview this juror about the deliberative process in this

case. We agree.

      This court has long recognized the strong public interest underpinning the

need to protect the confidentiality of the jury's deliberative process. State v.


                                                                              A-2695-18
                                        15
Young, 

181 N.J. Super. 463

, 468 (App. Div. 1981).            Protecting the jury's

deliberative process during and after the trial is an indispensable part of creating

an environment that allows individual jurors to express their views of the

evidence freely and without fear of retribution. As noted by the late Chief

Justice Weintraub: "A jury deliberates in secrecy to encourage each juror to state

his thoughts, good and bad, so that they may be talked out." State v. LaFera, 

42

N.J. 97

, 106 (1964).     Recalling a juror for a post-verdict voir dire is an

"extraordinary procedure" that should be invoked only when good cause is

shown. State v. Athorn, 

46 N.J. 247

, 250 (1966); see also R. 1:16-1. The trial

judge correctly concluded that the evidence presented did not meet this standard.

      Finally, we address defendant's argument concerning the length of the

sentence imposed by the trial court. As we noted at the start of this opinion, the

trial judge sentenced Cooper to an extended term of sixteen years with eight

years of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), on

his conviction for second-degree possession of a handgun for an unlawful

purpose. N.J.S.A. 2C:39-4(a)(1). The judge thereafter merged defendant's

conviction of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b)(1). This constituted an illegal sentence.




                                                                              A-2695-18
                                        16
      As our Supreme Court explained in State v. Garcia, the doctrine of merger

codified in N.J.S.A. 2C:1-8(a) does not apply here because unlawful possession

of a firearm under N.J.S.A. 2C:39-5(b) "involves a distinct factual element

failure to obtain a permit to carry a firearm." 

195 N.J. 192

, 200 n.4 (2008).

Stated differently, "the gravamen of unlawful possession of a handgun is

possessing it without a permit[.]" State v. Deluca, 

325 N.J. Super. 376

, 392-93

(App. Div. 1999). This offense thus stands alone for sentencing purposes "and

does not merge with a conviction for a substantive offense committed with the

weapon."

Ibid.

The State concedes

in its appellate brief that "at the State’s improvident

urging, the judge improperly merged defendant’s conviction for possession of a

weapon without a permit with his conviction for possession of a weapon for an

unlawful purpose." Although the State otherwise fervently defends the sentence

imposed by the trial court, the court's misapplication of the doctrine of merger

here renders this sentence legally untenable. The trial judge must resentence

Cooper de novo and determine the term to impose on each separate offense.

      To assist the trial court in this respect, we will also address the other

arguments Cooper raised related to the sentence. Cooper argues the court: (1)

misconstrued the applicable range for the imposition of an extended term; (2)


                                                                          A-2695-18
                                      17
improperly considered arrests and other matters that did not result in a

conviction to support finding aggravated factor N.J.S.A. 2C:44-1(a)(6); (3)

abused its discretion when it granted the State's motion to impose a discretionary

extended term pursuant to N.J.S.A. 2C:44-3(a); and (4) did not articulate a basis

for imposing the longest permissible parole disqualifier under the Graves Act,

N.J.S.A. 2C:43-6(c).

      Our standard of review to determine the validity of a sentence imposed by

the trial court is well-settled. We review the record developed at the sentencing

hearing and the explanation the judge gave in support of this particular sentence.

State v. Case, 

220 N.J. 49

, 65 (2014). We also determine whether the record

contains credible evidence to support the applicability of the particular

aggravating and mitigating factors the judge found relevant in this case. State

v. Roth, 

95 N.J. 334

, 363-64 (1984); N.J.S.A. 2C:44-1. Stated differently, we

must determine "whether, on the basis of the evidence, no reasonable sentencing

court could have imposed the sentence under review." State v. Ghertler, 

114

N.J. 383

, 388 (1989).

      Cooper was twenty-three years old when he committed these two

handgun-possession offenses on November 27, 2016. He was less than three

weeks from his twenty-sixth birthday when he stood before the trial judge for


                                                                            A-2695-18
                                       18
sentencing on January 11, 2019. The judge found he had three prior serious

indictable convictions; all of his criminal transgressions, including the two

handgun convictions in this case, occurred in Hudson County.

     He was eighteen years old when he committed his first criminal offense

on November 4, 2011. He was convicted of second-degree unlawful possession

of a handgun and sentenced to a term of five years, with one year of parole

ineligibility. On May 8, 2018, the court sentenced Cooper on two pending

offenses. The first involved second-degree robbery under Indictment 15-2-212,6

for which the court sentenced him to a term of six years, with an eighty-five

percent period of parole ineligibility and three years of parole supervision

pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On this same date,

the court sentenced him under Accusation 15-9-478 to a term of six years flat




6
  Although the judge did not identify the degree of the robbery offense as
codified in N.J.S.A. 2C:15-1, we infer it was a second-degree robbery from the
term of imprisonment imposed by the court. See N.J.S.A. 2C:43-6(a)(2),
empowering the court to impose a term imprisonment between five to ten years
for a crime of the second-degree. Furthermore, the New Jersey Department of
Corrections (NJDOC) website indicates Cooper committed this robbery on
August 3, 2014. Offender Search Form, State of New Jersey Dep't of Corr.,
https://www20.state.nj.us/DOC_Inmate/inmatesearch (accept disclaimer; then
search for SBI Number "000156845E").


                                                                        A-2695-18
                                     19
for second-degree eluding, 7 N.J.S.A. 2C:29-2(b). The judge ordered that these

two sentences run concurrently to the six-year term imposed on the second-

degree robbery.

      Against this backdrop, the judge found sufficient evidence to support the

following aggravating factors under N.J.S.A. 2C:44-1(a): (3), the likelihood that

Cooper may commit another offense; (6), his prior criminal record and the

seriousness of these convictions; and (9), the need for specific and general

deterrence. The judge noted "that this now represents his fourth indictable

conviction of offenses that occurred before he had attained the age of twenty-

four." With respect to lesser non-indictable offenses, the judge found:

            He has in 2014 and 2015 municipal ordinance
            violations in the Jersey City Municipal Court. In 2014,
            he was arrested on the robbery charge. In 2015, he was
            arrested on the eluding charge. In 2016, he was arrested
            on a drug paraphernalia charge and sentenced in the
            Jersey City Municipal Court. In 2016, he was arrested
            on the instant case and in 2017 while in custody, he was
            charged with assaulting a law enforcement officer, and
            pled guilty to a simple assault. So, he assaulted [an]
            officer while he was in custody.

                  ....

7
  Although the judge did not identify the offense or degree, the NJDOC website
indicates that Cooper committed second-degree eluding on May 4, 2015.
Offender Search Form, State of New Jersey Dep't of Corr.,
https://www20.state.nj.us/DOC_Inmate/inmatesearch (accept disclaimer; then
search for SBI Number "000156845E").
                                                                           A-2695-18
                                      20
             There’s an overwhelming need to deter Mr. Cooper as
             well as others. There’s simply no reason for him to be
             running the streets carrying a gun, and he’s just not
             carrying a gun. I think we have to keep in mind that the
             [j]ury convicted him for possessing that weapon for an
             unlawful purpose.

      Cooper notes that the judge's findings did not end here. He argues the

judge impermissibly considered arrests that did not result in further prosecution

when weighing the aggravating factors.         The State argues that a judge at

sentencing may view "other aspects of [a] defendant's record." State v. Dunbar

108 N.J. 80

, 92 (1987). Here, the judge noted Cooper "was . . . in the juvenile

justice system at the age of [fifteen] and received a deferred disposition. Then

less than three years later, he was arrested . . . [on a] gun possession charge . . .

was arrested again in 2011 and that matter was dismissed." The judge used these

relatively minor interactions with the juvenile justice system as a harbinger of

the criminal behavior Cooper would exhibit once he reached adulthood. The

record shows the judge used this line of reasoning to support finding aggravating

factor N.J.S.A. 2C:44-1(a)(3). According to the judge, Cooper's "pattern is very

clear to me. He is certainly someone who does not appreciate the need for a

secure society and continues to violate the law."




                                                                              A-2695-18
                                        21
      Our Supreme Court has made clear that "when no such undisputed facts

exist or findings are made, prior dismissed charges may not be considered for

any purpose." State v. K.S., 

220 N.J. 190

, 199 (2015) (emphasis added). The

judge's comments and consideration of Cooper's minor interactions with the

Juvenile Justice System as well as any adult charges that did not result in a

conviction was indisputably improper. However, when viewed in the context

of Cooper's record of violent criminal convictions that occurred in a relatively

short period of time, the judge's finding of aggravated factor N.J.S.A. 2C:44-

1(a)(3) remains well-supported by competent evidence in the record. Cooper's

remaining arguments attacking the viability of the sentence lack sufficient merit

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

      The jury's verdict finding Cooper guilty of second-degree unlawful

possession of a handgun and second-degree possession of a handgun for an

unlawful purpose is affirmed. However, as the State concedes, the trial judge

improperly merged these two separate convictions and imposed a single

extended term sentence on second-degree possession of a handgun for an

unlawful purpose. This is an illegal sentence. We thus remand the matter to the

trial court to resentence Cooper anew taking into considerations the comments

and analysis we have included in this opinion.


                                                                           A-2695-18
                                      22
      Affirmed in part, reversed in part, and remanded for resentencing. We do

not retain jurisdiction.




                                                                        A-2695-18
                                     23

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