On appeal from Superior Court of New Jersey, Law Division, Atlantic County, 00-02-0227-B.
Before Judges Petrella, Wefing and Collester.
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2003
Defendant was indicted for two counts of aggravated assault, N.J.S.A. 2C:12-1b(1) and -1b(2); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7. Tried to a jury, defendant was acquitted of both aggravated assault counts and convicted of the remainder of the charges. At sentencing, the trial court granted the State's motion to sentence defendant to an extended term*fn1 and sentenced defendant to twenty years in prison, with a ten-year period of parole ineligibility, for possession of a weapon for an unlawful purpose and a concurrent five-year term for unlawful possession of a weapon. Defendant was sentenced to a consecutive ten years, with a five-year period of parole ineligibility, for possession of a weapon by a convicted felon. Defendant's sentence thus aggregated thirty years in prison, with a fifteen-year period of parole ineligibility. Defendant appeals and we reverse.
On December 15, 1999, Monique Saxon was at home at her apartment at 202 Whalers Drive in Pleasantville. Ms. Saxon lived there with her seven-year-old daughter, Alia, and a roommate, Yulen Owens. Two friends came over that evening, Jamel Coleman and Jonathan Miller. A little before midnight, Ms. Saxon was watching television with the visitors and Ms. Owens was in her room. Alia was asleep on the couch.
As the doorbell rang, Ms. Saxon got up and went to the bathroom. She heard the sounds of a scuffle. She opened the door and looked out. She saw Jamel struggling with a man with a gun. She grabbed her daughter from the couch and retreated to the bathroom. She heard the sound of a gun firing. Police responded promptly to reports of gunfire. They found Miller with a gunshot wound in his thigh and a black automatic handgun on the floor.
Miller testified that Coleman had answered the door and that an older black male wearing a security guard uniform and brandishing a gun had tried to force his way in. Coleman struggled with the intruder and Miller went to his assistance. The gun discharged, and Miller was struck in the leg. The intruder left.
The police searched the surrounding area. They found a black baseball cap, a pair of glasses and a collapsible baton. Defendant was seen sitting on a nearby bench and the police approached him. He was sweating profusely despite the fact that it was a winter night. He was wearing a gray jump suit over a light blue shirt which had epaulets on the shoulders and blue pants with a yellow stripe on the sides. Under the bench was a black bag which contained duct tape. A pair of silver-colored handcuffs were nearby. The police took defendant back to Ms. Saxon's apartment and all three immediately identified him as the perpetrator.
Defendant denied any involvement. He testified that he was at the apartment complex to borrow a car from a man he knew as"Jewel." He did not know Jewel's last name or the number of the apartment in which he lived. He denied telling the police that his brother lived at the complex and said he had not been dressed as a security guard. He said the bag and the handcuffs did not belong to him. He attributed his sweating to the fact he has diabetes and had not eaten dinner.
Defendant raises the following arguments on appeal:
THIS COURT'S DECISION IN STATE V. WRAY REQUIRES THAT DEFENDANT'S CONVICTIONS BE REVERSED FOR NEW, BIFURCATED TRIALS. (Not Raised Below)
THE PROSECUTOR'S SUGGESTION IN SUMMATION, THAT DEFENDANT COULD HAVE HAD THE GUN TESTED FOR FINGERPRINTS, IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF, THEREBY DENYING DEFENDANT A FAIR TRIAL
THE EVIDENCE AND ARGUMENTS THAT DEFENDANT WAS THWARTED IN HIS PLAN TO COMMIT A HOME INVASION ROBBERY, AND THE JURY INSTRUCTION WHICH ACCEPTED THAT ARGUMENT, DENIED DEFENDANT HIS RIGHT TO INDICTMENT AND DUE PROCESS OF LAW. (Raised In Part Below)
A. The Prosecutor Violated Defendant's Right to Indictment and His Due Process Right to Be Advised ...