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State v. Branch

June 4, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT CROSS-APPELLANT,
v.
HORACE BRANCH, DEFENDANT-APPELLANT CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Approved for Publication June 5, 1997.

Before Judges Shebell, Baime and Braithwaite. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

In December 1993, defendant, Horace Branch, was charged in thirteen counts of a fifteen count indictment as follows: first degree armed robbery of Randolph Moseley (N.J.S.A. 2C:15-1) (Count One); first degree felony murder of Randolph Moseley (N.J.S.A. 2C:11-3a(3)) (Count Two); first degree murder of Randolph Moseley (N.J.S.A. 2C:11-3a(1) & (2)) (Count Three); first degree armed robbery of Philip Murphy (N.J.S.A. 2C:15-1) (Count Four); first degree armed robbery of Kenneth Dortch (N.J.S.A. 2C:15-1) (Count Five); fourth degree pointing of a firearm at Eddie Ratchford (N.J.S.A. 2C:12-1b(4)) (Count Six); third degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b) (Count Seven); second degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a) (Count Eight); fourth degree possession of hollow point bullets (N.J.S.A. 2C:39-3f) (Count Nine); fourth degree resisting arrest (N.J.S.A. 2C:29-2) (Count Ten); third degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b) (Count Thirteen); second degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a) (Count Fourteen); and fourth degree unlawful possession of hollow point bullets (N.J.S.A. 2C:39-3f) (Count Fifteen).

In the same indictment, Patricia Lee was charged with third degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b) (Count Eleven) and second degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a) (Count Twelve). Lee did not stand trial, but was instead given use-immunity to testify against defendant.

On November 14, 1994, following a six-day trial, defendant was found guilty of first degree felony murder (N.J.S.A. 2C:11-3a(3)) (Count Two); first degree aggravated manslaughter (N.J.S.A. 2C:11-4.a(1)) (Count Three); fourth degree pointing of a firearm (N.J.S.A. 2C:12-1b(4)) (Count Six); third degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b) (Count Seven); second degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a) (Count Eight); fourth degree possession of hollow point bullets (N.J.S.A. 2C:39-3f) (Count Nine); fourth degree resisting arrest (N.J.S.A. 2C:29-2a) (Count Ten); third degree possession of a semi-automatic handgun without a permit (N.J.S.A. 2C:39-5b) (Count Thirteen); second degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4f) (Count Fourteen); and fourth degree possession of hollow point bullets (N.J.S.A. 2C:39-3f) (Count Fifteen).

On December 13, 1994, the trial Judge set aside the conviction for felony murder returned by the jury on Count Two. On Count Three, aggravated manslaughter, defendant was sentenced to an extended term of life imprisonment with twenty-five years parole ineligibility. The Judge imposed the remaining sentences as follows: on Count Six, defendant was sentenced to a consecutive term of eighteen months; on Count Seven, a consecutive term of ten years, with five years parole ineligibility; on Count Nine, an eighteen month consecutive sentence; on Count Ten, an eighteen month consecutive sentence; Counts Eight and Fourteen were merged with Count Three; Count Thirteen was merged with Count Seven, and Count Fifteen was merged with Count Nine. The court imposed a total of $500 V.C.C.B. penalties and credited the defendant with 405 days of jail credit.

Defendant filed a Notice of Appeal, and the State filed a Cross-Appeal Nunc Pro Tunc.

On appeal, the defendant argues:

Point One

A Plainclothes Detective Tackled The Defendant And Thereby Subjected Him To An Unreasonable Seizure.

Subpoint (a) Defendant Had A Reasonable Expectation Of Privacy.

Subpoint (b) The Defendant Was Subjected To An Unconstitutional Seizure & All Evidence Discovered As A Result Of That Illegal Seizure Must Be Suppressed.

Point Two

Count Ten Of The Indictment Did Not Provide Sufficient Notice To Allow The Defendant To Prepare A Defense. (Not Raised Below)

Point Three

The Court Erred When It Did Not Grant Its Sua Sponte R. 3:18-1 Motion For Judgment Of Acquittal On Count Ten Of The Indictment.

Point Four

The Defendant Was Denied A Fair Trial When The Court:

Subpoint (a) Failed To Provide Adequate Guidance On The Law Regarding Aggravated & Reckless Manslaughter. (Not Raised Below)

Subpoint (b) Failed To Properly Charge The Jury On Self-Defense (Not Raised Below)

Subpoint (c) Failed To Explain The Law In The Context Of The Material Facts. (Not Raised Below)

Subpoint (d) Failed To Answer The Jury's Questions Concerning A Witness.

Point Five

The Court's Failure To Sua Sponte Charge The Jury With Passion-Provocation Manslaughter, N.J.S.A. 2C:11-4(b)(2) And Assault, N.J.S.A. 2C:12-1(a)(2) Denied The Defendant A Fair Trial. (Not Raised Below)

Point Six

The Court Erred When It Denied Defendant's R. 3:18-2 Motion Since The Jury's Verdict Was Against The Weight Of The Evidence On Counts Three, Six, Seven, Eight, Nine, Ten, Fourteen & Fifteen.

Point Seven

The Court's Admission Of Three Autopsy Photos Of The Victim Was Prejudicial And Inflammatory And Served To Deny The Defendant A Fair Trial.

Point Eight

The Court Imposed Sentences That Did Not Comply With The Guidelines And Was Both Excessive & Shocking To The Judicial Conscience.

Subpoint (a) Before Imposing An Extended Term Pursuant To N.J.S.A. 2C:43-6(c), The Court Did Not Hold A Hearing Under N.J.S.A. 2C:43-6(d) To Determine If The Defendant Was A Second Offender Under The Graves Act.

Subpoint (b) Before Imposing The Maximum Extended Term & Period Of Parole Ineligibility, The Court Failed To Balance Sentencing Factors To Determine The Base Term And Period Of Parole Ineligibility.

Subpoint (c) The Court Failed To Follow The Sentencing Guidelines When It Imposed Terms Of Imprisonment On Counts Six, Seven, Nine & Ten.

Subpoint (d) The Court Imposed An Illegal Sentence On Count Seven.

Subpoint (e) The Court Did Not Explain Its Reasons For Imposing Four Consecutive Sentences.

Subpoint (f) The Court's Sentence Was Excessive And Shocking To The Judicial Conscience.

Point Nine

It Was Plain Error To Omit Self-Defense From The Verdict Sheet. (Not Raised Below)

The defendant filed a pro se supplemental brief urging:

POINT I THE PROSECUTOR AMENDMENT OF COUNT 10 TO THE INDICTMENT WITHOUT THE GRAND JURY CONSENT VIOLATES DEFENDANT SUBSTANTIAL RIGHTS TO DUE ...


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