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State v. Vassos

Decided: January 16, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK VASSOS, DEFENDANT-APPELLANT



J.h. Coleman, Muir, Jr. and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

Defendant was indicted together with James Robert Hinton, Dale Mullener and Guy Walsifer for conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2; armed robbery, in violation of N.J.S.A. 2C:15-1; burglary while armed, in violation of N.J.S.A. 2C:18-2; criminal restraint, in violation of N.J.S.A. 2C:13-2; receiving stolen property, in violation of N.J.S.A. 2C:20-7; possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b, possession of a rifle without first obtaining a purchaser identification card, in violation of N.J.S.A. 2C:39-5c(1), and possession of a handgun with the purpose to use it unlawfully against the person of another, in violation of N.J.S.A. 2C:39-4a. A jury acquitted defendant of robbery but convicted him of the other charges.

The court granted the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3a and N.J.S.A. 2C:43-7a. At the original sentencing, defendant was sentenced to a 30 year term of imprisonment, with 15 years of parole ineligibility, for conspiracy to commit robbery, concurrent 15 year terms, with 7 1/2 years of parole ineligibility, for burglary, possession of a handgun without a permit and possession of a weapon for an unlawful purpose, and concurrent 7 year terms, with 3 1/2 years of parole ineligibility, on the remaining convictions. On its own motion, the court resentenced defendant to a 15 year term, with 7 1/2 years of parole ineligibility,

for conspiracy to commit robbery, and to a 7 year term, with a 3 1/2 year parole ineligibility period, for possession of a handgun without a permit, because it had been mistaken as to the extended term sentencing ranges for these offenses at the time of original sentencing.

On appeal, the Public Defender makes the following arguments on behalf of defendant:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DENIED THE DEFENDANT HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS AND A SPEEDY TRIAL BY DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT.

II. THE TRIAL COURT COMMITTED PLAIN ERROR BY THREATENING THE DEFENDANT'S EXCULPATING WITNESS WALSIFER WHICH RESULTED IN A MANIFEST DENIAL OF JUSTICE.

III. THE COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE PROSECUTOR TO EXCEED THE BOUNDS OF PROPER CROSS-EXAMINATION OF THE ALIBI WITNESS WHICH RESULTED IN A MANIFEST DENIAL OF JUSTICE.

IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE ACTUAL ALIBI NOTICE AND COMMITTED PLAIN ERROR BY ALLOWING THE PROSECUTOR TO MAKE SUMMATION ARGUMENT BASED ON SAID NOTICE WHICH RESULTED IN A MANIFEST DENIAL OF JUSTICE.

V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO CHARGE THE JURY THAT VALUE WAS AN ELEMENT OF THEFT.

VI. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO DISMISS THE THEFT COUNT BASED ON THE STATE'S FAILURE TO ESTABLISH VALUE.

VII. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE BASED ON THE COURT'S APPLICATION OF N.J.S.A. 2C:44-3.

VIII. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE BASED ON THE TRIAL COURT'S FAILURE TO MERGE COUNT I CONSPIRACY PURSUANT TO N.J.S.A. 2C:1-8.

Defendant has filed a supplemental pro se brief which makes the following additional argument:

DEFENDANT WAS DENIED REASONABLE COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

We affirm the denial of defendant's motion to dismiss the indictment on speedy trial grounds, substantially for the reasons expressed in the trial court's oral opinion of September 9, 1987. However, we reverse the judgment of conviction and

remand the matter for a new trial, because the trial court's interruption of the testimony of defendant's key witness to warn him of the possible penal consequences of his testimony and the subsequent refusal of the witness to testify further denied defendant a fair trial. Our reversal of defendant's conviction on this ground makes it unnecessary to address defendant's other arguments relating to alleged trial errors which are unlikely to recur at a new trial. However, we note that the trial court sentenced defendant to extended terms for every offense of which he was convicted. This sentence violated N.J.S.A. 2C:44-5a(2), which provides that "[w]hen multiple sentences of imprisonment are imposed on a defendant for more than one offense . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence, except that . . . [n]ot more than one sentence for an extended term shall be imposed." (Emphasis added). Therefore, if defendant is again convicted of more than one offense upon his retrial, he should not be sentenced to more than one extended term.

Defendant's convictions arose out of a burglary of a K-Mart store in Belleville and a robbery of a maintenance man working in the store. The victim was not able to identify any of his assailants. The only evidence presented by the State to link defendant to the crime was the testimony of James Hinton, who pled guilty to the crime pursuant to a plea bargain with the State. Hinton testified that defendant was one of his confederates.

The key witness for the defendant was Guy Walsifer, who also pled guilty to the crime. After admitting his own involvement, Walsifer proceeded to give the following testimony exculpating defendant:

Q. During the time that this offense was committed, was Mr. Vassos present? Did he assist in committing the offense at K-Mart in Belleville?

A. No.

Q. You were ...


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