On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-04-0768.
Before Judges Stern, Wecker and Graves.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2005
Defendant and co-defendants Andre Cutler and Andrew Johnson were indicted for attempted murder, N.J.S.A. 2C:2-6, 2C:5-1 and 2C:11-3 (count one), second degree aggravated assault, N.J.S.A. 2C:2-6 and 2C:12-1b(1) (count two), third-degree aggravated assault on a corrections officer, N.J.S.A. 2C:2-6 and 2C:12-1b(5) (count three), second-degree attempted escape, N.J.S.A. 2C:5-1 and 2C:29-5 (count nine), and third-degree possession of implements for escape, N.J.S.A. 2C:29-6a(2) (count ten). The co-defendants were also charged in other counts apparently based on their conduct during the attempted escape.*fn1
Defendant was tried alone and convicted on all counts. The trial judge thereafter granted the State's motion to sentence defendant to an extended term as a persistent offender, N.J.S.A. 2C:44-3a, and defendant was sentenced to fifty years in the custody of the Commissioner of Corrections, with a twenty-five year period of parole ineligibility, on the attempted murder. A ten-year consecutive sentence was imposed on count nine. The conviction on second-degree aggravated assault on count two was merged into the conviction for attempted murder on count one, and concurrent sentences were imposed on the remaining counts. The aggregate sentence of sixty years imprisonment, with a twenty-five year parole ineligibility term, was made consecutive to a sentence defendant was then serving.
On this appeal, defendant argues:
POINT I DEFENDANT'S CONVICTION FOR FIRST DEGREE
ATTEMPTED MURDER MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY WITH REGARD TO ACCOMPLICE LIABILITY ON THAT COUNT, AND THUS PRECLUDED THE JURY FROM CONSIDERING THAT DEFENDANT COULD BE FOUND GUILTY OF SECOND DEGREE OR THIRD DEGREE AGGRAVATED ASSAULT AS LESSER INCLUDED OFFENSES OF ATTEMPTED MURDER, EVEN IF HIS CO-DEFENDANTS WERE GUILTY OF ATTEMPTED MURDER. (Not Raised Below)
POINT II THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF THIRD-DEGREE AGGRAVATED ASSAULT VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL. (Not Raised Below)
POINT III DEFENDANT'S SENTENCE IS EXCESSIVE
A. The Imposition Of A Presumptive Base Term With The Maximum Term of Parole Ineligibility Was An Abuse of Discretion
B. The Trial Court Abused Its Discretion
In Imposing A Consecutive Sentence For The Attempted Escape In a supplementary brief, ...