On appeal from the Superior Court, Law Division, Atlantic County.
Dreier, Shebell and Stern. The opinion of the court was delivered by Shebell, J.A.D.
Defendant appeals his jury conviction of attempted theft (N.J.S.A. 2C:20-2b(2)(d)) as a lesser-included offense of the armed robbery for which he was indicted. He urges the following:
Point One. By denying defendant's application to challenge the grand and petite [ sic ] jury selection system in Atlantic County, the New Jersey courts have violated his federal and state constitutional rights to due process, equal protection and trial by an impartial jury drawn from a fair cross-section of the community.
Point Two. The trial court erred in failing to charge the issue of entrapment.
Point Three. Defendant did not receive effective assistance of counsel.
Point Four. The trial court erred in failing to grant defendant's motion for acquittal.
Point Five. The defendant's conviction must be vacated for all other errors at the trial.
On November 5, 1984, an Atlantic County grand jury indicted defendant and a codefendant for conspiracy to commit robbery (N.J.S.A. 2C:5-2) (count one); two counts of possession of a weapon (rock and brush) under circumstances not manifestly appropriate for lawful use (N.J.S.A. 2C:39-5d) (counts two and four); two counts of possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4) (counts three and five); and armed robbery (N.J.S.A. 2C:15-1) (count six).
Within the time permitted by R. 3:6-2 defendant attempted to file a pro se pleading entitled "Omnibus Pretrial Motions for Relief" in which he alleged, among other things, that the grand jury was not lawfully impaneled. The County Clerk marked the papers "received" on December 3, 1984, but did not file them because of the assignment judge's policy of not accepting pro se motions where a defendant is represented by counsel. Defendant apparently was not notified that his motion was not filed. Defendant and codefendant were initially represented by the same attorney of the Office of the Public Defender.
On January 28, 1985, the day prior to trial, counsel renewed defendant's motion challenging the jury selection process. The trial judge reserved decision and on the first day of trial the
court ruled that defendant's challenge was not timely filed and that in any event the decision in State v. Ronald Long, 204 N.J. Super. 469 (Law Div.1985), was not to be applied retroactively. The court also ruled that the petit jury panel was such that defendant would receive a fair trial.
Defendant's motions for dismissal and/or acquittal, made both at the close of the State's case and after all of the testimony, were denied. At the close of all the evidence, the State moved to dismiss the conspiracy count conditioned on the court charging accomplice liability, which the court agreed to do. Defendant was acquitted of all charges except attempted theft. Defendant's motion for a new trial, which contended the verdict was against the weight of the evidence and challenged the propriety of charging the jury on the lesser-included offense of attempted theft, was denied. The court denied the State's motion to sentence defendant as a persistent offender, and sentenced him to a five year indeterminate term at Yardville.
On October 26, 1984 at approximately 10:40 p.m. a member of the Atlantic City Police Department, acting as a robbery decoy, had a few dollar bills tucked in his shirt pocket and was sitting on a brick wall, 50 feet from the boardwalk, in a parking lot where there was an abandoned parking shed. Plainclothes detectives were hidden in the shed and a canine officer with his dog waited in a darkened area of the parking lot; an unmarked police car completed the decoy scene.
According to the State's case, defendant and codefendant walked down the street from the boardwalk on the same side as the decoy. They stopped, looked around and asked the officer if he wanted to smoke a joint. He ignored them but they asked several times until he said no. After several more attempts to cajole him into smoking, the two took the officer by his ...