Before Judges Kleiner and Braithwaite.
The opinion of the court was delivered by: Kleiner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 24, 1999 -
On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
In a joint trial presented to a jury, defendant Christopher Gaskin and his brother, defendant Dorian Gaskin, were convicted of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one) and fourth-degree possession of an imitation firearm under circumstances that would lead a reasonable person to believe that it was possessed for an unlawful purpose, N.J.S.A. 2C:39-4(e) (count four), as amended by the trial Judge at the close of the State's case. Each defendant was acquitted on count two, which charged a separate first-degree robbery, N.J.S.A. 2C:15-1, and on count three, which charged unlawful possession of a weapon, N.J.S.A. 2C:58-4. The indictment, as returned by the Middlesex County Grand Jury, also named Charles Jeter, a/k/a Charles Bell, as a co-defendant on each count of the indictment. Prior to trial, Jeter entered into a plea agreement and agreed to testify against the Gaskin brothers.
Both robberies occurred on the Douglass University campus between 8:15 p.m. and 8:30 p.m. on September 18, 1996. The victim of the first robbery was Jose Villagran and the robbery was witnessed by one of Villagran's classmates, Christopher Kimmler. The victim of the second robbery was Sean Keating.
Immediately prior to the joint trial, it was determined that defendant Dorian Gaskin's name had not been included within count two of the indictment. The trial Judge determined that the Middlesex Grand Jury had voted sixteen to zero to indict Dorian Gaskin for the robbery of Keating; however, the trial Judge concluded that the jury would not be permitted to consider any robbery charge against Dorian Gaskin as to victim Keating. However, the Judge also ruled that any reference to Dorian Gaskin's participation in the Keating robbery might be evidential as to the issue of Dorian Gaskin's participation in the robbery charge as to victim Jose Villigran.
Following defendants' convictions, Dorian Gaskin was sentenced as a youthful offender to a custodial term of twelve years, to be served at Yardville. Defendant's conviction under count four was merged with his conviction under count one. A parole ineligibility period was not imposed. Additionally, appropriate statutory penalties were imposed.
Christopher Gaskin was sentenced to a custodial term of twenty-five years with a five-year period of parole ineligibility on count one. Defendant's conviction on count four was merged with his conviction on count one. Appropriate statutory penalties were imposed. *fn1
On appeal, defendant Dorian Gaskin raises seven separate points of error:
POINT I THE CONVICTION MUST BE REVERSED FOR NONCOMPLIANCE WITH RULE 1:2-3 FOR FAILURE TO PROPERLY DESCRIBE DEFENDANT'S PHOTOGRAPH (Not raised below).
THE CONVICTION MUST BE REVERSED FOR NONCOMPLIANCE WITH RULE 1:2-3 FOR THE STATE'S FAILURE TO PRESERVE THE DEFENDANT'S PHOTOGRAPH (Not raised below).
INTRODUCTION OF THE DEFENDANT'S PHOTOGRAPH AS TO IDENTIFICATION OF COUNT 2 AS IT MIGHT APPLY TO COUNT 1 IS CONTRARY TO N.J.R.E. 404(b) AND THE COURT ERRED IN NOT GRANTING THE DEFENDANT'S APPLICATION FOR A NEW TRIAL.
THE CONVICTION MUST BE REVERSED FOR DEFECTS IN THE CHARGE.
POINT V THE CONVICTION MUST BE REVERSED FOR JUROR CONDUCT IMPUGNING THE RELIABILITY OF THE VERDICT AND THE COURT ERRED IN NOT GRANTING THE ...