On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication January 31, 1997. As Corrected February 18, 1997. As Corrected March 12, 1997.
Before Judges Michels, Kleiner and Coburn. The opinion of the court was delivered by Kleiner, J.A.D.
The opinion of the court was delivered by: Kleiner
The opinion of the court was delivered by
Tried before a jury, defendant, Chester Lee Bowser, was convicted of first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (count one); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a and N.J.S.A. 2C:2-6 (count two); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) and N.J.S.A. 2C:2-6 (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:2-6 (count four); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:2-6 (count five).
Defendant was sentenced to a custodial term of sixteen years with a six-year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6, on count one. Defendant's convictions on counts two through five were merged into his conviction on count one. *fn1 Defendant was also ordered to pay $1,000 as restitution to the victim and $30 to the Violent Crimes Compensation Board.
After defendant's trial, he entered into a plea agreement on an unrelated indictment charging third-degree receipt of stolen property, N.J.S.A. 2C:20-7a. Defendant was sentenced to a custodial term of five years for this offense to be served concurrent to his sentence for first-degree robbery. Appropriate statutory penalties were imposed, and defendant was also ordered to pay $200 as restitution to his victim.
On appeal, defendant raises nine points of error:
THE PROSECUTION'S INTRODUCTION INTO EVIDENCE OF INCRIMINATING PORTIONS OF CO-DEFENDANT'S STATEMENT, CONSISTING OF PREJUDICIAL HEARSAY, DENIED THE DEFENDANT HIS RIGHT TO CONFRONTATION AND ITS ADMISSION CONSTITUTED REVERSIBLE ERROR (Not Raised Below).
INTRODUCTION OF OTHER UNCHARGED CRIMINAL ACTIVITY BY THE DEFENDANT WAS ERROR.
THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY OF THE LIMITED RELEVANCE OF OTHER CRIMES EVIDENCE CONSTITUTED REVERSIBLE ERROR (Not Raised Below).
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF SECOND DEGREE ROBBERY AND WHEN IT GAVE INSUFFICIENT INSTRUCTIONS ON FIRST DEGREE ROBBERY, AGGRAVATED ASSAULT, UNLAWFUL POSSESSION OF A WEAPON AND POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE (Not Raised Below).
IMPROPER IMPEACHMENT OF THE DEFENDANT ON AN IRRELEVANT MATTER BY INADMISSIBLE EXTRINSIC EVIDENCE WAS ERROR (Not Raised Below).
PROSECUTORIAL MISCONDUCT, CONSISTING OF: PRESENTING INADMISSIBLE OTHER CRIMES EVIDENCE; IMPEACHING THE DEFENDANT ON A COLLATERAL MATTER; IMPEACHING THE DEFENDANT WITH INADMISSIBLE EXTRINSIC EVIDENCE; VOUCHING FOR A WITNESS DURING SUMMATION; ADVANCING THEORY THAT DEFENDANT NEEDED MONEY FOR DRUGS AND HAD NO OTHER SOURCE OF INCOME; AND, ELICITING INADMISSIBLE HEARSAY INFORMATION FROM WITNESSES IN ORDER TO BUTTRESS OTHER WITNESSES TESTIMONY AS WELL AS THE PROSECUTION CASE, DEPRIVED THE DEFENDANT OF A FAIR TRIAL (Not Raised Below).
DEFENSE COUNSEL'S NUMEROUS FAILURES TO PROTECT THE DEFENDANT'S RIGHT TO A FAIR TRIAL DEPRIVED HIM OF EFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST. AMEND. VI ; N.J. CONST. ART. I, PAR. 10 (Not raised below).
THE SENTENCE IMPOSED BY THE LOWER COURT WAS INAPPROPRIATE BECAUSE IT FAILED TO HOLD A SEPARATE HEARING TO ESTABLISH THAT THE DEFENDANT POSSESSED THE WEAPON FOR PURPOSES OF THE GRAVES ACT AND THIS ISSUE WAS NEVER SUBMITTED BY WAY OF INSTRUCTION TO THE JURY (Not Raised Below).
THE TRIAL COURT ERRED IN IMPOSING A SENTENCE IN EXCESS OF THE PRESUMPTIVE TERM (Not Raised Below).
On November 13, 1991, defendant visited the home of his co-defendant, Jason Ash. During the visit, either defendant or Ash's wife telephoned a nearby convenience store to find out what time it closed. Defendant and Ash then left the Ash residence and proceeded to the convenience store. According to the proprietor, Ash stood near the register while defendant walked around the store selecting items to purchase. When defendant walked over to the cash register, Ash pulled a handgun and demanded money from the proprietor. Ash grabbed a ...