On appeal from the Superior Court, Law Division, Essex County.
Antell and Shebell. The opinion of the court was delivered by Shebell, J.A.D.
Defendant appeals his manslaughter (N.J.S.A. 2C:11-4) and hindering apprehension (N.J.S.A. 2C:29-3b(4)) convictions and sentences following a jury trial on an indictment charging murder (N.J.S.A. 2C:11-3a(1), (2)), unlawful possession of a handgun with purpose to use it unlawfully against another (N.J.S.A. 2C:39-4a) and hindering his own apprehension by volunteering false information. He was sentenced to a term of 12 years with four years of parole ineligibility on his conviction for manslaughter and to a concurrent term of three years on the hindering apprehension conviction.
He alleges the following:
Point I -- The Graves Act is inapplicable to defendant.
Point II -- The trial court committed reversible error by failing to properly instruct the jury on the elements of aggravated manslaughter. (Not Raised Below).
Point III -- The sentence imposed upon the defendant by the trial court is excessive and violative of the sentencing guidelines.
Defendant asserts for the first time on appeal that "the trial court committed reversible error by failing to properly instruct the jury on the element of aggravated manslaughter." He points out that the trial judge stated:
Criminal homicide constitutes aggravated manslaughter when the actor purposely or knowingly causes death under circumstances manifesting an extreme indifference to human life. [Emphasis ours].
It is clear the trial judge misspoke with respect to this portion of the jury instruction, N.J.S.A. 2C:11-4a; however, the court recharged the jury and gave a very clear definition of aggravated manslaughter which included the requirement that the conduct be done recklessly under circumstances manifesting an extreme indifference to human life, which he defined as conduct that is practically certain to kill anyone who might happen to be in the way. The court's original error favored defendant as it put a greater burden on the State than is provided for in the statute. The trial judge's error was not capable of producing an unjust result. R. 2:10-2; State v. Hock, 54 N.J. 526, 538 (1969), cert. den. 339 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).
Defendant makes a two-pronged attack upon his sentence. He urges that the Graves Act is inapplicable, and that the sentence imposed is excessive ...