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

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). 

NOT FOR PUBLICATION WITHOUT THE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.

September 23, 2019
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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.