On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Before Judges Michels, Stern and Humphreys.
The opinion of the court was delivered by
Tried to a jury, defendant Isaac Lane was convicted of aggravated assault, a crime of the second degree, in violation of N.J.S.A. 2C:12-1b(1) (Fifth Count) and unlawful possession of a handgun without first having obtained a permit to carry the same, a crime of the third degree, in violation of N.J.S.A. 2C:39-5b (Seventh Count). The trial court committed defendant to the custody of the Commissioner of the Department of Corrections (Commissioner) for a term of four years and assessed a $30 Violent Crimes Compensation Board penalty for his conviction for unlawful possession of a weapon under the Seventh Count. In addition, the trial court committed defendant to the custody of the Commissioner for a term of nine years with a four and one-half year period of parole ineligibility and assessed a $30 VCCB penalty for defendant's conviction for aggravated assault under the Fifth Count. This sentence was to be served consecutively to the sentence imposed under the Seventh Count. Defendant appeals.
Defendant seeks a reversal of his convictions or, alternatively, a modification of his sentences on the following grounds set forth in his brief:
POINT I: INEFFECTIVE ASSISTANCE OF COUNSEL DEPRIVED THE DEFENDANT OF A FAIR TRIAL IN VIOLATION OF THE SIXTH AMEND., U.S. CONST., ART. I, SECTION 10, N.J. CONST. (Not Raised Below).
POINT II: THE CHARGE OF AGGRAVATED ASSAULT AND THE SECOND PROSECUTION VIOLATED THE DOCTRINE OF DOUBLE JEOPARDY AND THE CONCEPT OF COLLATERAL ESTOPPEL EMBODIED THEREIN, U.S.C.A. CONST. AMENDS. 5, 14; N.J.S.A. CONST. ART. 1, PAR. 1. (Not Raised Below).
POINT III: THE STATE FAILED TO DISPROVE THE DEFENSE AND ALSO FAILED TO PROVE THE ELEMENTS OF THE OFFENSE BEYOND A REASONABLE DOUBT.
POINT IV: THE JURY CHARGE FAILED TO ADEQUATELY INSTRUCT THE JURY OF THE STATE'S BURDEN AND THE PROPER APPLICATION OF THE DIMINISHED CAPACITY DEFENSE TO THE OFFENSES.
POINT V: THE COURT ERRED IN EXCLUDING EVIDENCE IN THE FORM OF TAPED CONVERSATIONS OF THE DEFENDANT, THE VICTIM AND OTHERS.
POINT VI: THE NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
POINT VII: THE SENTENCE IMPOSED BY THE COURT WAS EXCESSIVE AND CONTAINED A MINIMUM PERIOD OF PAROLE INELIGIBILITY GREATER THAN THAT REQUIRED BY LAW WITHOUT PROPERLY WEIGHING THE AGGRAVATING AND MITIGATING FACTORS.
POINT VIII: THE CUMULATIVE ERRORS OF THE TRIAL COURT DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
We have carefully considered these contentions and all of the supporting arguments advanced by defendant, and find, with the exception of the order directing defendant to serve his sentences and the claimed ineffective assistance of counsel, that they are without merit and warrant only the following Discussion in a written opinion. R. 2:11-3(e)(2).
Defendant contends for the first time on appeal that his retrial for second-degree aggravated assault under the Fifth Count, after reversal of his earlier conviction on this charge, constituted an infringement of the Federal and State Constitutional double jeopardy prohibitions and also violated the collateral estoppel doctrine. We disagree.
The Double Jeopardy Clause "does not bar reprosecution of a defendant whose conviction is overturned on appeal." Justices of Boston Mun. Ct. v. Lydon, 466 U.S. 294, 308, 104 S. Ct. 1805, 1813, 80 L. Ed. 2d 311, 324 (1984). "It is consistent with the guarantee against double jeopardy to retry a defendant who has succeeded in obtaining reversal of his conviction based on trial ...