Before Judges Pressler, Kimmelman and Ciancia.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 1999 - Decided October 7, 1999
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
The opinion of the court was delivered by PRESSLER, P.J.A.D.
Defendant Martel Johnson appeals from a judgment of conviction entered following two jury trials resulting in a verdict of guilt of one charge of first-degree robbery, N.J.S.A. 2C:15-1; one charge of second-degree possession of a firearm with intent to use it unlawfully against a person, N.J.S.A. 2C:39-4a; and two charges of third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5b. He was sentenced to a base term of eighteen years on the first-degree crime and to concurrent maximum base terms on the other three. Because the first-degree crime was a crime of violence as defined by N.J.S.A. 2C:43-7.2d (No Early Release Act), a parole ineligibility term of eighty-five percent of the base term was imposed, namely fifteen years, three months and eighteen days. A parole ineligibility term of eighty-five percent was also imposed on the second-degree weapon crimes, and maximum parole ineligi-bility periods were imposed on the two third-degree crimes. Appropriate monetary penalties were also imposed.
In challenging the judgment of conviction, defendant raises the following issues:
I. THE DEFENDANT'S RIGHT TO TRIAL BY JURY WAS VIOLATED BY THE TRIAL COURT'S REFUSAL TO ALLOW HIM TO EXERCISE PEREMPTORY CHALLENGES. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 9.
A. The Court Erred In Disallowing Defendant's Challenge Made With the Purpose of Seating A Single Black Juror.
B. The Court Further Erred In Disallowing Defendant's Subsequent Challenge.
II. DEFENDANT'S COUNSEL WAS PREJUDICIALLY INEFFEC-TIVE FOR DISCLOSING DEFENDANT'S REASONS FOR EXERCISING A PEREMPTORY CHALLENGE IN THE ABSENCE OF A RULING BY THE TRIAL COURT THAT THE STATE HAD MADE A PRIMA FACIE SHOWING THAT THE CHALLENGE WAS EXERCISED ON A CONSTITUTIONALLY-IMPERMISSIBLE BASIS. U.S. CONST., AMENDS, VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below)
III. THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE IN DELIVERING A CHARGE AS TO FLIGHT IN THE DENNIS TRIAL.
IV. TESTIMONY BY THE ARRESTING OFFICER VIOLATED THE RULE OF STATE V. BANKSTON TO DEFENDANT'S PREJUDICE. (Not Raised Below)
V. NEW JERSEY'S RECENTLY-ENACTED "NO EARLY RELEASE ACT," N.J.S.A. 2C:43-7.2, WHICH PROVIDES THAT DEFENDANTS SENTENCED FOR A VIOLENT CRIME OF THE FIRST OR SECOND DEGREE MUST SERVE 85% OF THEIR SENTENCES BEFORE BECOMING ELIGIBLE FOR PAROLE, VIOLATES STATE AND FEDERAL CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL AND ...