On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
J.h. Coleman, Bilder and Stern. The opinion of the court was delivered by Stern, J.A.D.
Defendants Jules Robinson and James Gorman were indicted with Denise Bugyi for armed robbery, N.J.S.A. 2C:15-1a(2) (count one), and aggravated assault, N.J.S.A. 2C:12-1b(4) (counts two and three). Bugyi entered a guilty plea and testified for the State at the joint trial of Gorman and Robinson
(defendants). At the Conclusion of the State's case defendants successfully moved to have count three, alleging aggravated assault by pointing a firearm at Carl Middleton, dismissed. Defendants were both thereafter found guilty of armed robbery and the remaining charge of aggravated assault involving Bruce Forrester.
After the trial Judge denied Robinson's motion for a new trial based on newly discovered evidence, the Judge denied the State's request that both defendants be sentenced to mandatory extended terms as second Graves Act offenders under N.J.S.A. 2C:44-3d. The Judge merged count two, the aggravated assault charge, into count one, the armed robbery charge, and sentenced both defendants to eighteen years with a six year period of parole ineligibility.
On this appeal Gorman argues:
POINT I DEFENDANT'S CONVICTION FOR FOURTH DEGREE AGGRAVATED ASSAULT SHOULD BE VACATED .
POINT II THE TRIAL JUDGE COMMITTED PLAIN ERROR IN FAILING SUA SPONTE TO ACQUIT DEFENDANT FOR AGGRAVATED ASSAULT UNDER R. 3:18-1, 3:18-2, AND 3:20. .
POINT III THE PROSECUTOR'S COMMENTS MADE IN SUMMATION HAD THE CLEAR CAPACITY TO DEPRIVE DEFENDANT OF A FAIR TRIAL. (PARTIALLY RAISED BELOW).
POINT IV DEFENDANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL.
POINT V THE TRIAL COURT'S INSTRUCTIONS TO THE JURY RESULTED IN REVERSIBLE ERROR BECAUSE IT RELIEVED THE STATE OF ITS BURDEN TO PROVE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT. .
POINT VI DEFENDANT IS ENTITLED TO HAVE HIS SENTENCE AND PAROLE ELIGIBILITY CALCULATED IN A MANNER CONSISTENT WITH N.J.S.A. 2C:44-5b(2) AND THE APPLICABLE CASE LAW.
POINT VII DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL IN THAT COUNSEL UTTERLY FAILED TO INVESTIGATE, PREPARE AND DEVELOP DEFENDANT'S APPROPRIATE APPLICATION FOR ALMOST 945 DAYS OF "GAP-TIME CREDITS" UNDER RICHARDSON V. NICKOLOPOULOS.
POINT VIII THE TRIAL COURT ABUSED ITS DISCRETION IN (1) FAILING TO ADDUCE SUFFICIENT EVIDENCE TO SUPPORT ITS FINDINGS OF AGGRAVATING FACTORS (2) DENYING THE APPLICABILITY OF
MITIGATING FACTORS AND (3) FAILING TO APPROPRIATELY WEIGH THE AGGRAVATING AND MITIGATING FACTORS.
POINT I THE TWO YEAR DELAY FROM DEFENDANT'S ARREST UNTIL THE COMMENCEMENT OF TRIAL VIOLATED HIS RIGHT TO A SPEEDY TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 10.
POINT II THE TRIAL JUDGE'S REFUSAL TO REINSTRUCT THE JURORS ON THE SPECIAL CREDIBILITY PROBLEMS RELATED TO ACCOMPLICE TESTIMONY DENIED DEFENDANT THE RIGHT TO A FAIR TRIAL; U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 9, 10.
POINT III THE DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL ON THE BASIS OF NEWLY DISCOVERED EVIDENCE DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS V, VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10.*fn1
By timely cross appeals the State challenges the denial of its request that defendants be treated as second offenders under the Graves Act.
Our careful review of the record convinces us that the contentions raised on the appeals and cross appeals lack merit
and do not warrant extended Discussion, R. 2:11-3(e)(2), except as noted herein.
The denial of defendants' motions for dismissal of the indictment on speedy trial grounds is affirmed substantially for the reasons stated by Judge Martin L. Haines in his letter opinion of March 20, 1989.
We briefly recite the facts relevant to an understanding of the critical issues arising from the trial and motion for new trial. On January 9, 1987 at about 9:00 p.m. Bruce Forrester and Carl Middleton, both employees of Consumer Electronics in Maple Shade, travelled in separate cars to the Blason office of the First Fidelity Bank in Moorestown to make a night deposit of the day's proceeds. Forrester was carrying the deposit bag that day. As he was about to make the deposit Forrester noticed someone standing "in front of [his car] door." The man demanded the money and pointed a gun at Forrester's head from a distance of about 10" to a foot. Forrester handed over the deposit bag which contained about $1,300.00 in cash and checks. Thereafter Forrester's car began to roll backward because Forrester had neglected to put the car in park while waiting for Middleton. The assailant moved in front of the car and fired the gun. Forrester then saw the assailant, later identified as Robinson, "stumbl[e] around" while facing Forrester and looking at the gun. Then the assailant fled "through the field and towards [an] office complex."
Middleton, who was in his car behind the Forrester vehicle, "observed a man sitting on a curb near the bank drop" as they pulled up. Middleton saw the man approach Forrester's car and "put a gun to his head". Middleton heard the man demand the money and saw Forrester hand the bank bag over to him. Middleton then observed the man walk 10-15 feet to the front
of Forrester's car, turn, fire a shot and flee toward the adjacent field.
When responding police officers arrived at the scene, Sergeant Naylor discovered a .25 calibre automatic shell casing underneath the drive-in roof. Forrester and Middleton provided the police with formal statements. Middleton also assisted a ...