Before Judges Pressler, Ciancia and Arnold.
The opinion of the court was delivered by: Arnold, J.S.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2000
On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Defendant Arthur Byard appeals from his convictions following a jury trial of second-degree aggravated arson committed on September 15, 1995 at Nanny's Grocery Store (Nanny's) in Paterson, disorderly persons criminal mischief at Nanny's on September 5, 1995, and fourth-degree retaliation against a witness between September 5, 1995 and September 15, 1995. He was sentenced as a persistent offender to a term of twenty years with a ten-year period of parole ineligibility on the arson conviction and to concurrent terms of eighteen months with nine months parole ineligibility for the fourth-degree offense of retaliation and six months for criminal mischief. These concurrent terms were imposed consecutively to the sentence on the arson conviction.
Defendant raises the following points on appeal:
IN VIOLATION OF N.J.R.E. 404(b) AND 403, THE TRIAL COURT ALLOWED THE STATE TO INTRODUCE, IN AN ARSON PROSECUTION, EVIDENCE OF AN ARSON FOR WHICH DEFENDANT WAS NEVER CHARGED, AND THE COURT ERRED BY GIVING AN INADEQUATE LIMITING INSTRUCTION REGARDING THIS PURPORTED OTHER- CRIME EVIDENCE. (Partially raised below)
THE PROSECUTOR IMPROPERLY USED HIS OPENING COMMENTS TO TESTIFY ABOUT OTHER-CRIME EVIDENCE WHICH WAS NEVER SUBSTANTIATED AT TRIAL. (Not raised below)
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
This case arises from events occurring over a period of ten days in September 1995. The following evidence was presented to the jury regarding those events.
At the time of the alleged incidents Jose Muñoz (Muñoz) owned and operated Nanny's Grocery Store located at 54 North 3rd Street in Paterson. Muñoz testified that he knew defendant. On September 5, 1995, Muñoz's car was parked on the street directly in front of Nanny's. From inside the store, Muñoz saw defendant on the roof of his car while four other men were playing cards on its hood. Muñoz approached the men and asked them to move away from his car. At that time, Muñoz noticed the roof of the ...