On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
J.h. Coleman and Ashbey. The opinion of the court was delivered by J.h. Coleman, P.J.A.D.
Defendant was tried before a jury on charges of attempted murder, contrary to N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count one); second-degree robbery, contrary to N.J.S.A. 2C:15-1 (count two); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count three); third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (count four); and fourth degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(3) (count five). He was tried before a separate jury for fourth-degree possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7 (count six). He was found guilty on counts three, four and five and acquitted on the other three counts.
Defendant was sentenced on March 14, 1989 to an extended term of 20 years with 10 years of parole ineligibility on the aggravated assault. He was sentenced to concurrent custodial terms on counts four and five. This appeal followed.
On this appeal, defendant contends that:
I DEFENDANT'S SECOND-DEGREE AGGRAVATED ASSAULT CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT DID NOT CHARGE THE JURY AS TO THE LESSER INCLUDED OFFENSE OF THIRD-DEGREE AGGRAVATED ASSAULT. .
II DEFENDANT'S MATTER MUST BE REMANDED SO AS TO DETERMINE WHETHER THE PETIT JURY ARRAY WAS CONSTITUTED PURSUANT TO FEDERAL AND CONSTITUTIONAL REQUIREMENTS; IF THE ARRAY WAS NOT CONSTITUTED PROPERLY, DEFENDANT'S CONVICTIONS MUST BE REVERSED.
III THE SENTENCING COURT ERRED BY IMPOSING AN EXTENDED TERM OF 20 YEARS WITH A MINIMUM PAROLE INELIGIBILITY TERM OF 10 YEARS AS TO THE SECOND-DEGREE AGGRAVATED ASSAULT CONVICTION.
A. The sentencing court erred by imposing an extended term.
B. The sentencing court erred by imposing a parole ineligibility term.
The pertinent facts are pretty straight forward. On May 5, 1988, Hoover J. Turner, also known as "Slim," was employed by the Monmouth Park Track as a caretaker for the horses. Defendant accused a coworker, Edwin Simonds, of short changing him $20 when making change for a $50 bill. When Simonds denied the allegation, defendant threatened to kill Simonds. The dispute occurred in the recreation hall and Simonds shoved a pool stick at defendant without touching him. Both men left the recreation hall only to meet again in a violent clash.
A few minutes later, defendant and Simonds met outside and defendant told Simonds, "I'll make you give me my money." Defendant slashed Simonds' throat, with an unidentified sharp instrument, from the ear across the trachea. The police and an ambulance were summoned to the ...