Before Judges Pressler, Ciancia and Parrillo. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 99-2-106-I.
The opinion of the court was delivered by: Per Curiam
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 27, 2001
Following a trial by jury, defendant George Tilghman was convicted of a charge of second-degree robbery, N.J.S.A. 2C:15-1, and a related charge of third-degree burglary, N.J.S.A. 2C:18- 2a(1). He was sentenced on the robbery charge to an extended term of twenty years subject to an eight-year term of parole ineligibility, and, on the burglary charge, to a concurrent five- year term. Required statutory penalties were also imposed. Defendant appeals, and we reverse on the ground of prosecutorial misconduct.
The gravamen of the crimes charged against defendant arose out of the robbery, in her home, of the seventy-four year old victim during the late evening of December 14, 1998. She had arrived home at about 10 p.m., parked her car in her driveway, and was accosted by her assailant as she was entering the house. Her assailant pushed her into the house, stole her purse and fled when he heard the alarm of her car, which she was able to activate as she was still holding her car key. The victim summoned the police and gave them a description of the assailant. Believing that defendant, who was known to the police, fit that description, the officer included his picture in a photographic array. The victim identified defendant, who was arrested four days later. The sole witnesses for the State at trial were the victim and the officer. Defendant produced no evidence, his defense resting on the assertion of mistaken identification by the victim. The jury, however, evidently accepted the victim's testimony.
In challenging the judgment of conviction, defendant raises the following issues:
I. VICTIM IMPACT APPEALS CONCERNING SENIOR CITIZENS AS VICTIMS OF CRIME MADE BY THE PROSECUTOR IN HER OPENING STATEMENT WERE IMPROPER AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW)
II. TESTIMONY THAT DETECTIVE COLANDUONI HAD "PERSONAL KNOWLEDGE" OF DEFENDANT SUBSTAN- TIALLY PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL BECAUSE IT WAS NOT RELEVANT TO ANY MATERIAL ISSUE AND BECAUSE IT CLEARLY SUGGESTED THAT DEFENDANT HAD A PRIOR CRIMINAL RECORD. (NOT RAISED BELOW)
III. THE PROSECUTOR'S COMMENTS IN SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)
IV. IMPOSITION OF AN EXTENDED TERM SENTENCE OF TWENTY (20) YEARS WITH EIGHT (8) YEARS OF PAROLE INELIGIBILITY ON DEFENDANT'S CONVICTION FOR ROBBERY (COUNT TWO) WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE SENTENCING COURT'S DISCRETION.
A. THE COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM.
B. IMPOSING A BASE SENTENCE OF TWENTY (20) YEARS WITH EIGHT (8) YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.
We address first the claim of prosecutorial misconduct in the summation. After discussing the identification evidence, the prosecutor had this to say:
But if that was not enough, let's look at the conduct briefly of George Tilghman. He is arrested in his home. Very calmly asks, what is this all about? He is in front of his brother and sister. The detective looks at George Tilghman, and I guess out of some respect for privacy says, it is up to you, do you want them to know? Well, yeah, I'd like to know, too. The officer tells him that he has an arrest ...