Before Judges Pressler, Kimmelman
The opinion of the court was delivered by: Kimmelman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County.
Defendant Richard James Rhodes was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1a(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon under circumstances not manifestly appropriate, N.J.S.A. 2C:39-5d; third-degree theft of a controlled dangerous substance (CDS), N.J.S.A. 2C:20-3a and N.J.S.A. 2C:20-2b(2)(C); and third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1).
On the first-degree armed robbery conviction, defendant was sentenced to a term of life imprisonment without parole under the Persistent Offender Accountability Act, N.J.S.A. 2C:43-7.1a. This act is generally referred to as the Three-Strikes Law and provides for a life sentence without parole for any person convicted on three separate occasions of certain violent crimes. The sentences for the remaining third-degree convictions were for five years in prison each with a two and one-half year period of parole ineligibility, concurrent with each other and concurrent to the sentence of life imprisonment. The sentence on the fourth-degree offense was for a concurrent term of eighteen months.
Defendant seeks a reversal of his convictions or, alternatively, the modification of his sentence on the following grounds set forth in his brief:
POINT I - DEFENDANT'S CUSTODIAL ADMISSION SHOULD HAVE BEEN SUPPRESSED SINCE THE POLICE FAILED TO SCRUPULOUSLY HONOR DEFENDANT'S INVOCATION OF HIS RIGHT TO REMAIN SILENT AND REQUEST FOR COUNSEL.
Miranda and the Per Se Edwards Rule.
POINT II - THE COURT'S SUGGESTION TO THE JURY THAT DEFENDANT INTENDED TO PURPOSELY DEPRIVE THE OWNER OF THE PERCOCET WAS A DIRECTED VERDICT THAT IMPROPERLY INTRUDED ON THE FUNCTION OF THE JURY AND DIMINISHED DEFENDANT'S PRESUMPTION OF INNOCENCE. (Not Raised Below).
POINT III - THE COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION TO RECUSE THE TRIAL PROSECUTOR WHO PREVIOUSLY REPRESENTED THE SAME PERSON THAT WAS IDENTIFIED AS THE PERPETRATOR; DEFENSE COUNSEL WOULD HAVE BEEN ALLOWED TO CALL THE PROSECUTOR AS A WITNESS TO SHOW BIAS -- THAT THE PROSECUTOR FAILED TO INVESTIGATE THAT INDIVIDUAL BECAUSE HE PREVIOUSLY REPRESENTED HIM IN PRIVATE PRACTICE.
POINT IV - THE PROSECUTOR'S COMMENTS DURING SUMMATION -- PERSONALLY VOUCHING FOR THE STATE'S CASE, ALLUDING TO MATTERS OUTSIDE OF THE EVIDENCE AND ALLUDING TO DEFENDANT'S FAILURE TO TESTIFY --WERE IMPROPER. (Partially Raised below).
POINT V - DEFENDANT'S SENTENCE OF A LIFE TERM OF IMPRISONMENT WITH NO PAROLE UNDER THE "THREE ...