On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, 98-10-970-I.
Before Judges Petrella, Kestin and Alley.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant was charged with two first degree crimes: purposeful or knowing murder of one victim (N.J.S.A. 2C:11-3a(1) or (2)) and attempted murder of another (N.J.S.A. 2C:5-1 and :11-3); three second degree crimes: two counts of possession of a handgun with purpose to use it unlawfully against others (N.J.S.A. 2C:39-4a) and a single count of endangering the welfare of a child (N.J.S.A. 2C:24-4a); and ten counts of fourth degree receipt, purchase or acquisition of a handgun without a permit (N.J.S.A. 2C:39-10a and :58-3a). The endangering count was dismissed on the State's motion, and the remaining charges were tried to a jury. Acquitting defendant of purposeful and knowing murder, the jury found him guilty of lesser-included aggravated manslaughter (N.J.S.A. 2C:11- 4a) and of the remaining charges.
At sentencing, the court merged the possession of weapons convictions with the related convictions for aggravated manslaughter and attempted murder and imposed consecutive prison terms for the latter convictions, respectively, of twenty-one years and sixteen years both subject to the eighty-five percent and five- year parole supervision requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2. Ten one-year terms of imprisonment were imposed for the weapons-permit offenses to be served concurrently with each other and with the longer terms. Appropriate statutory assessments and penalties were ordered.
Defendant appeals from the convictions and sentences, raising the following issues:
POINT ITHE TRIAL COURT'S UNEXPLAINED CLOSURE OF THE COURTROOM, AND EJECTION OF DEFENDANT'S FAMILY, DURING JURY SELECTION VIOLATED DEFENDANT'S RIGHT UNDER THE SIXTH AMENDMENT AND ARTICLE I, PARA. 10 OF THE NEW JERSEY CONSTITUTION, AND REQUIRES A REVERSAL OF DEFENDANT'S CONVICTIONS.
POINT II THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNTS 5 THROUGH 14 FOR A LACK OF ANY EVIDENCE OF THE MATERIAL ELEMENT OF UNLAWFUL "PURCHASE" OR "ACQUISITION".
POINT III THE TRIAL COURT ERRED IN ADMITTING EVIDENCE PURSUANT TO N.J.R.E. 404(b) RESULTING IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL VERDICT.
POINT IV MULTIPLE ACTS OF PROSECUTORIAL MISCONDUCT, UNCORRECTED BY THE TRIAL COURT, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR AND IMPARTIAL VERDICT.
a. DESPITE JUDICIAL INSTRUCTION, THE PROSECUTOR ELICITED TESTIMONY TO SHOW THAT DEFENDANT INVOKED HIS RIGHT TO "SILENCE" AND TO AN ATTORNEY DURING POST-ARREST QUESTIONING.
b. THE PROSECUTOR'S COMMENTS BOTH IN HIS OPENING AND CLOSING STATEMENTS WERE BOTH OUTSIDE THE EVIDENCE AND HIGHLY PREJUDICIAL (PARTIALLY RAISED BELOW).
c. THE PROSECUTOR COMMITTED SERIOUS DISCOVERY VIOLATIONS PREJUDICIAL TO THE DEFENSE, AND THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A MISTRIAL.
POINT VTHE SENTENCE IN THIS CASE WAS EXCESSIVE, AND WAS IMPOSED WITHOUT PROPER APPLICATION OF THE SENTENCING GUIDELINES, THE RULES OF MERGER, OR THE MANDATES OF STATE v. YARBOUGH ON THE IMPOSITION OF CONSECUTIVE SENTENCES.
a. THE TRIAL COURT ERRED IN FAILING TO "MERGE" FOR SENTENCING PURPOSES THE CONVICTIONS FOR ATTEMPTED MURDER AND AGGRAVATED MANSLAUGHTER.
b. THE IMPOSITION OF CONSECUTIVE SENTENCES IN THE CIRCUMSTANCES OF THIS CASE WAS BOTH EXCESSIVE AND IN VIOLATION OF THE SENTENCING ANALYSIS MANDATED BY STATE v. YARBOUGH.
POINT VI THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.
We reverse, dismissing the weapons-permit charges and remanding for a new trial on the remaining counts as modified.
The charges arose from an incident outside defendant's home at about 1:30 a.m. on June 18, 1998. According to his own testimony, defendant was dozing in an easy chair when he was awakened by the sound of a car exhaust in front of his house. The sound faded away. The same sound recurred and faded away a second time. On hearing the car a third time, defendant looked out the window. He saw a male leave a black car stopped in the street with its engine running. That person carried an object in his hand and crossed the street walking toward the homes of defendant and his neighbor. Defendant retrieved a handgun and returned to the window to see the intruder attempting to break the driver's side window of the neighbor's parked car. Defendant then went out the front door of his home onto the porch, yelled at the individual, and simultaneously fired a shot. Defendant contended that he aimed at a wall across the street because he only wanted to scare the person and chase him away, not hit him.
After the shot was fired, the intruder ran across the street to the idling car, jumped in, closed the door, and drove backwards up the street. Defendant walked down one or two steps and fired another shot just as the vehicle began to back up. He claimed that he pointed his gun toward the neighbor's parked car, not at the moving car, and that he had no intent to injure anyone. He said he was unaware that the moving car had any occupants other than the driver. After the second shot was fired, the black car continued to back up and disappeared from view.
One of the shots penetrated the windshield of the black car. The front seat passenger was shot through the head. The driver testified that the second shot was fired several seconds following the first after he had been traveling in reverse for about five seconds. Defendant testified ...