On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-05-1830.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 26, 2006
Before Judges Axelrad and R. B. Coleman.
Defendant, Naeem Miller, was charged under Essex County Indictment No. 03-05-1830 with the first degree murder of Timothy Phillips, contrary to N.J.S.A. 2C:11-3(a)(2) (count one); second degree aggravated assault of Stacy Davis, contrary to N.J.S.A. 2C:12-1b(1) (count two); third degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b (count three); and second degree possession of a handgun, with a purpose to use it unlawfully against the person of another, contrary to N.J.S.A. 2C:39-4a (count four). After a seven-day trial, conducted in March and April 2005, the jury found defendant guilty of all charges.
On May 13, 2005, Judge Thomas R. Vena sentenced defendant to a term of thirty years in prison, with thirty years of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the murder conviction and a consecutive seven-year term with parole ineligibility for eighty-five percent of that term pursuant to NERA for the conviction for aggravated assault. The court imposed a concurrent four-year term for the conviction on the third count, unlawful possession of the handgun, and merged the fourth count, possession of the handgun for an unlawful purpose, with counts one and two. Defendant now raises the following points of error on appeal:
THE TRIAL COURT'S IDENTIFICATION INSTRUCTIONS, WHICH BOTH MISSTATED THE EVIDENCE AND SUMMARIZED IT IN AN UNBALANCED AND MISLEADING MANNER, DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) (NOT RAISED BELOW).
THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY ON AGGRAVATED AND RECKLESS MANSLAUGHTER AS LESSER-INCLUDED OFFENSES OF MURDER WAS REVERSIBLE ERROR IN LIGHT OF THE CLEAR MANDATE OF THE NEW JERSEY SUPREME COURT IN STATE V. JENKINS, 178 N.J. 347 (2004) (NOT RAISED BELOW).
THE COURT'S CONFUSING AND CONTRADICTORY INSTRUCTIONS, WHICH AT ONE POINT ERRONEOUSLY TOLD THE JURY THAT IT COULD CONVICT THE DEFENDANT OF AGGRAVATED ASSAULT IF IT FOUND THAT HE "PURPOSELY, KNOWINGLY, OR RECKLESSLY . . . ATTEMPT[ED] TO CAUSE SERIOUS BODILY INJURY," REQUIRES REVERSAL OF THE ATTEMPTED MURDER COUNT (NOT RAISED BELOW).
THE SENTENCE IMPOSED IS MANIFESTLY ...