J.h. Coleman, Brody and Skillman. The opinion of the court was delivered by Brody, J.A.D.
A jury convicted defendant of second-degree aggravated arson. N.J.S.A. 2C:17-1a(1). The judge sentenced him to prison for ten years, five years to be served before parole eligibility. The State presented evidence that two accomplices, acting at defendant's direction to burn a particular abandoned building, set a mattress on fire at the foot of a stairway that provided the building's only means of egress. Defendant knew when he ordered the fire that a police officer was inside, using the building to conduct a telescopic surveillance of the neighborhood for illegal drug activity. Confronted by the burning stairway, the officer escaped from the building by leaping to the ground from the first story.
Shortly before the fire, Det. John Imfeld had stopped and searched defendant pursuant to instructions he received on a hand-held radio from Det. Dennis Mason, the officer in the building. Det. Mason had advised Det. Imfeld that he had just seen defendant selling drugs on the street. Det. Imfeld did not find drugs on defendant's person. There was evidence that immediately after the search defendant overheard the next radio transmission in which Det. Mason directed Det. Imfeld to search a nearby field where he said he had seen defendant throw a white packet just before he was stopped. When no drugs were found in the field, defendant became incensed and accused the police of harassing him.
The testimony and a taped statement of one of his accomplices provided key evidence that defendant ordered the fire out of revenge, knowing that a police officer was inside the building. The prior statement became admissible when the accomplice, who had previously been convicted of the arson, was not forthcoming or consistent in his testimony.
Defendant raises the following points in his brief:
I. THE TRIAL COURT ERRED IN ADMITTING EXTENSIVE TESTIMONY AS TO ALLEGED DRUG TRANSACTIONS AND POSSESSION BY THE DEFENDANT.
II. THE COURT ERRED IN REFUSING TO DECLARE A MISTRIAL AFTER REPEATED REMARKS BY THE ASSISTANT PROSECUTOR REGARDING THE PRESENCE OF DEFENDANT'S FRIENDS AND RELATIVES IN THE COURTROOM PREJUDICED THE DEFENDANT AND IMPINGED ON HIS CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL.
III. THE TRIAL COURT ERRED IN FAILING TO CHARGE THE LESSER INCLUDED OFFENSES AS REQUESTED BY THE DEFENDANT.
IV. THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE, AND THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A NEW TRIAL ON THIS BASIS.
V. IN LIGHT OF THE UNAVAILABILITY OF THE VERBATIM TRANSCRIPT, DUE PROCESS REQUIRES THAT A NEW TRIAL BE ORDERED IN THIS MATTER.
VI. THE SENTENCE WAS EXCESSIVE.
We are satisfied from a careful review of this record that except for point III, in which defendant argues that the trial judge erred when he refused to charge allegedly lesser included offenses, the issues raised are clearly without ...