On appeal from Superior Court of New Jersey, Law Division, Warren County, 02-10-0408.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2005
Before Judges Skillman, Axelrad and Payne.
Defendant Michael Russell appeals his conviction for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one), third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and 2C:18-2 (count two), first-degree robbery, N.J.S.A. 2C:2-6 and 2C:15-1 (count three), second- and third-degree burglary, N.J.S.A. 2C:2-6 and 2C:18-2 (count four), third-degree terroristic threats, N.J.S.A. 2C:12-3b (count five), third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d (count six), unlawful possession of a knife, N.J.S.A. 2C:39-5d (count seven), second-degree aggravated assault with a knife, N.J.S.A. 2C:12-1b(1) (count eight), and third-degree aggravated assault with a knife, N.J.S.A. 2C:12-1b(2)(count nine). He also appeals his sentence of fifteen years in custody with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count three (first-degree robbery) and concurrent five-year terms on counts four (second-degree burglary), five (third-degree terroristic threats), six (third-degree possession of a weapon for an unlawful purpose), eight (second-degree aggravated assault), and nine (third-degree aggravated assault).
Defendant makes the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S REQUEST TO INSTRUCT THE JURY REGARDING THE DEFENSE OF RENUNCIATION.
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF THE TRIAL COURT'S RULING PERMITTING THE CO-DEFENDANT TO TESTIFY AS A STATE'S WITNESS WHILE APEARING IN PRISON CLOTHING, HANDCUFFS AND LEG SHACKLES.
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL ON THE BASIS THAT CERTAIN JURORS WERE ADVERSELY AFFECTED AS THE RESULT OF CONDUCT THEY OBSERVED WHICH OCCURRED OUTSIDE THE COURT ROOM DURING DELIBERATIONS.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY BY A STATE'S WITNESS INFERENTIALLY CONNECTING THE DEFENDANT WITH PRIOR CRIMINAL CONDUCT. (Not Raised Below.)
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT VI (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) INTO COUNTS VII AND IX (SECOND DEGREE AGGRAVATED ASSAULT AND THIRD DEGREE AGGRAVATED ASSAULT), AND FURTHER ERRED BY FAILING TO MERGE COUNT V (TERRORISTIC THREATS) AS WELL AS COUNTS ...