On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication March 21, 1996.
Before Judges Dreier, Kestin and Cuff. The opinion of the court was delivered by Dreier, P.j.a.d.
The opinion of the court was delivered by: Dreier
The opinion of the court was delivered by
Defendant appeals from convictions of first-degree robbery, N.J.S.A. 2C:15-1; second-degree robbery as a lesser-included offense of first-degree robbery, N.J.S.A. 2C:15-1; two counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; aggravated assault on a police officer as a lesser-included offense of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2. Defendant had originally also been charged with first-degree attempted murder, but was found not guilty of this charge. After merger of various offenses, defendant was sentenced on the two first-degree robberies to consecutive terms of eighteen years with a seven-year parole disqualifier, and ten years with a four-year parole disqualifier, the total sentence therefore being twenty-eight years with an eleven-year parole disqualifier.
Defendant accosted a postal worker on post-office property as she was going to work at 4:30 a.m. He threatened her at gunpoint and demanded her car keys. They struggled, and he stole her pocketbook, taking her car keys and other personal items. He immediately went to where she had parked and drove off in her car. The robbery occurred on federal property, but the car was parked in a lot on State land. Another postal worker observed defendant and later identified him both in a photographic line-up and in court. The woman who was robbed identified defendant solely from a photograph; she was unable to identify him in court.
Two days after the robbery, a police officer observed the stolen car and radioed for assistance. After a brief chase, the stolen car crashed and the driver and the passenger fled. The officer recognized the passenger, but chased the driver. During the chase, the officer threatened to shoot the individual if he did not stop, and finally caught him. The individual turned and hit the officer with a blunt object. The officer blacked out, and when he awoke, the individual was straddling and punching him. He recognized the assailant, although he could not immediately remember his name. After the assailant struck the officer several times, he allegedly reached for the officer's gun, pointed at the officer and pulled the trigger. The gun, however, misfired. The officer testified that it had never misfired before and subsequent testing showed that it was in working order. The gun had been fully loaded. The assailant fled with the officer's gun and the officer was taken to the hospital.
In the ensuing search for defendant, he was sighted once and fled, but later in the day his step-father arranged to have defendant turn himself in. Defendant was read his rights, and the step-father testified that defendant then asked for an attorney. During the processing, defendant asked the processing officer what the charges were against him. When he was told that one of the charges was the attempted murder of the officer, defendant responded he would "go for the robbery at the Post Office, but I didn't hit *fn1 the cop." Defendant was immediately readvised of his rights. He then gave a second, more formal, oral statement which the officer included in his report. Defendant admitted he stole the car and then gave it to two others, one of whom had been the passenger when the car had been apprehended. Defendant claimed he had heard that the other individual had the initial officer's gun, and he had seen that individual put the gun under his refrigerator. Defendant identified the individual who allegedly had the weapon, and the police proceeded to the individual's house. He consented to a search and the officer's gun was found under the refrigerator. The individual testified for the State that on the night before his arrest defendant had come to his house and told him that he had an altercation with the police and had beaten an officer. Defendant had remained for the night and left in the morning.
Defendant raises five points on this appeal, the first with four subparts.
EXTRAORDINARY EVENTS WHICH OCCURRED IN THE ESSEX COUNTY COURTHOUSE IMMEDIATELY PRIOR TO DEFENDANT'S TRIAL MADE A FAIR TRIAL FOR DEFENDANT IMPOSSIBLE, REQUIRING A REVERSAL OF HIS CONVICTIONS. (U.S. Const., Amend. VI; N.J. Const. (1947), Art. I, par. 10).
A. Defendant should have been granted an adjournment due to extensive publicity concerning the murder of a police officer five days earlier in the same courthouse and the potential for extreme prejudice accruing to the defendant as a result of the similarities of that case to his charges.
B. Defendant's request for individual voir dire of jurors should have been granted. The insufficient voir dire denied defendant his right to a fair trial. (Partially raised below).
C. A mistrial should have been granted because of the egregious misconduct of the prosecutor in summation.
D. A new trial should have been granted for the ...