On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County.
Approved for Publication March 6, 1996.
Before Judges Dreier, Stein and Kestin. The opinion of the court was delivered by Kestin, J.A.D.
The opinion of the court was delivered by: Kestin
The opinion of the court was delivered by KESTIN, J.A.D.
Appellants were codefendants. Each had been charged with murder, second degree conspiracy to commit murder, third degree possession of a weapon for unlawful purpose, and fourth degree unlawful possession of a weapon.
The circumstances from which the charges arose began with a fight between defendant Redd and Victor Liggins, one of a group of young men who were congregated at an intersection in Irvington. The fight broke out in a store and spilled outside onto the sidewalk. Members of Liggins's group moved to help him. Redd escaped from the group and ran away with several members of the group in pursuit. Defendant Reese, who had come to the area with Redd, had just stepped out of another store when Redd ran past her. Witnesses testified that Reese removed a knife from her purse and said to Redd, "here's the knife, take it" and "Kevin, take the knife, stab him"; that Redd stopped running and took the knife from Reese; and that as the victim, a member of the group, caught up with Redd and punched him in the face, Redd stabbed the victim, who collapsed and died.
The conspiracy charge was dismissed. The jury convicted each defendant of lesser included aggravated assault (defendant Reese as an accomplice) and the two weapon offenses.
The sentences were identical. Each defendant was ordered to serve a term of imprisonment for seven years on the merged convictions for aggravated assault and possession of a weapon for unlawful purpose, with a concurrent term of one year for the unlawful possession of a weapon conviction. Aggregate VCCB penalties of $150 each were also imposed.
On appeal, defendant Reese raises the following issues:
POINT I TRIAL COURT ERRED IN FAILING TO IMPOSE SENTENCE PURSUANT TO N.J.S.A. 2C:44-1(f)(2).
POINT II TRIAL COURT ERRED IN IMPOSING PRESUMPTIVE SENTENCE BECAUSE AGGRAVATING AND MITIGATING FACTORS WERE NOT IN EQUIPOISE.
POINT III IT WAS ERROR FOR THE TRIAL JUDGE TO PERMIT THE PROSECUTOR IN SUMMING UP TO MAKE COMMENTS WHICH WERE CLEARLY PREJUDICIAL TO THE DEFENDANT.
POINT IV TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON ALL TYPES OF ASSAULTS WAS ...