On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-12-2508.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2007
Before Judges Coburn, R. B. Coleman and Gilroy.
Defendant Daniel Cornelius was charged under Atlantic County Indictment No. 01-12-2508 with the following crimes: murder, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2) (count one); felony murder, N.J.S.A. 2C:11-3a(3) (count two); first degree robbery, N.J.S.A. 2C:15-1 (count three); second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count six); third degree hindering prosecution, N.J.S.A. 2C:29-3b(1) (count seven); fourth degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count eight); and second degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (count nine). Following a jury trial, defendant was convicted on all counts, save murder, where no verdict was returned.
Following a June 10, 2004 denial of a motion for a new trial, the court sentenced defendant. For the felony murder conviction, the court sentenced defendant to serve a life term with a sixty-three and three-quarter year mandatory minimum under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2b. The court also sentenced defendant to a consecutive ten-year extended term with a three-year mandatory minimum for hindering prosecution and a concurrent five-year term for the offense of possession of a firearm without a permit. Count nine was dismissed and the remaining convictions were merged.
Defendant raises the following arguments on appeal:
POINT I: DEFENDANT'S ROBBERY AND FELONY MURDER CONVICTIONS MUST BE REVERSED BECAUSE INADEQUATE JURY INSTRUCTIONS ON ROBBERY ON A THEORY OF ATTEMPTED THEFT DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (NOT RAISED BELOW).
POINT II: THE STATE'S PRESENTATION OF HEARSAY, TO THE EFFECT THAT DEFENDANT'S PHOTOGRAPH WAS INCLUDED IN THE ARRAYS SHOWN TO EYEWITNESSES BECAUSE HE HAD BEEN IMPLICATED IN THE SHOOTING BY A NON-TESTIFYING WITNESS (VAUGHN BLAKELY), VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
POINT III: IMPROPER SUMMATION COMMENTS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL; U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
POINT IV: THE IMPOSITION OF MAXIMUM AND CONSECUTIVE TERMS FOR THE RELATED OFFENSES OF FELONY MURDER AND HINDERING APPREHENSION WAS MANIFESTLY EXCESSIVE.
We have carefully considered defendant's arguments in light of the facts and applicable law and we affirm the judgment of conviction in all respects.
On September 22, 2001, around 10:30 p.m., seventeen-year old Robert (Bobby) Williams agreed to walk Yakita Foreman and her two-year old son to her home in Atlantic City. On the way, the group decided to cut through the Shore Terrace Housing Complex, also known as the Six Bedrooms Project, and stopped at the playground for a few minutes to allow Foreman's son to play.
As the group was passing the community center, a man dressed in black boots, black jeans, a hooded sweatshirt with a scarf over his face asked Williams to come over. He had a gun and directed Williams to get down on the ground, but Williams refused. The perpetrator then turned Williams around and forced him to the doors of the community center and told him to empty his pockets. Williams did so, but the perpetrator again told him to empty everything out of his pockets. When Williams told him that he had already done so, the man hit Williams on the right side of his head with the gun. Williams turned around and punched the man, ...