On appeal from Superior Court of New Jersey, Law Division, Cumberland County, 99-3-221-I.
Before Judges Conley, A. A. Rodríguez and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2001
In a five count indictment, Charita McLean, was charged with second-degree aggravated assault against Dionne Jarmon and Shemika Tillman by causing or attempting to cause serious bodily injury, contrary to N.J.S.A. 2C:12-1b(1) (count one); third-degree aggravated assault against Jarmon and Tillman by causing or attempting to cause significant bodily injury, contrary to N.J.S.A. 2C:12-1b(7) (count four); third-degree aggravated assault against Jarmon and Tillman by causing or attempting to cause bodily injury with a deadly weapon, contrary to N.J.S.A. 2C:12-1b(2) (count five); third-degree possession of a weapon, namely a razor/box cutter, with a purpose to use it unlawfully against the person of Jarmon and Tillman, contrary to N.J.S.A. 2C:39-4d (count two); and second-degree armed burglary, contrary to N.J.S.A. 2C:18-2 (count three).
After a trial, a jury convicted defendant of count one (aggravated assault by causing or attempting to cause serious bodily injury) as to Tillman only; count five (aggravated assault by causing or attempting to cause bodily injury with a deadly weapon) as to both Jarmon and Tillman; and count two (possession of a weapon for an unlawful purpose) as to Tillman only. Defendant was acquitted of all other charges. She was sentenced on count one to a term appropriate to a crime one degree lower, N.J.S.A. 2C:44- 1f(2), namely to four years imprisonment, subject to a period of parole ineligibility of eighty-five percent, or three years, four months and twenty-six days, and three years parole supervision pursuant to N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA); on count two to a concurrent four year term of imprisonment; and on count five to a concurrent four year term of imprisonment. Restitution and appropriate mandatory monetary penalties were imposed. On appeal, defendant makes these contentions:
DEFENDANT IS ENTITLED TO JUDGMENT OF ACQUITTAL ON COUNTS I AND II BECAUSE SHE WAS NOT CONVICTED OF THE OFFENSES CHARGED IN THOSE COUNTS. (Not Raised Below)
THE COURT'S BRIEF ALLUSION TO THE DEFENSE OF ACCIDENT – THAT IT "DID NOT WANT TO PRECLUDE [THE JURY] FROM CONSIDERING WHETHER [THE OFFENSE] WAS THE RESULT OF SOME ACCIDENT" – DID NOT CONSTITUTE AN INSTRUCTION ON THE DEFENSE OF ACCIDENT. (Partly Raised Below)
IT WAS REVERSIBLE ERROR NOT TO CHARGE ON IMPERFECT SELF-DEFENSE. (Not Raised Below)
IT WAS REVERSIBLE ERROR NOT TO CHARGE MUTUAL- CONSENT ASSAULT UNDER N.J.S.A. 2C:12-1a(1).
N.J.S.A. 2C:43-7.2, THE NO EARLY RELEASE ACT, IS UNCONSTITUTIONAL BECAUSE IT VIOLATES THE CONSTITUTIONAL GUARANTEES OF DUE PROCESS OF LAW, TRIAL BY JURY, AND RIGHT TO INDICTMENT. (Not Raised Below)
DEFENDANT IS NOT ELIGIBLE FOR A NERA TERM. (Not ...