On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, 03-04-0563, 03-04-0574 and 03-04-0577.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 24, 2006
Before Judges Kestin and Payne.
Defendants, Hassan Stevenson and Slick Thomas, were jointly charged in indictment no. 03-04-563 with armed robbery, a crime of the first degree, N.J.S.A. 2C:15-1 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); and second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a (count three). Additionally, each was charged separately in a single count with violating N.J.S.A. 2C:39-7b, certain persons not to have weapons, a crime of the second degree, Stevenson in indictment no. 03-04-577, and Thomas in indictment no. 03-04-574.
Following a joint trial, each defendant was found guilty of first-degree robbery, second-degree possession of a weapon for unlawful purpose, and lesser included fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(3). Each was also found guilty of the second-degree weapon possession crimes charged in the separate indictments.
In respect of each defendant, the trial court merged the weapon and aggravated assault convictions arising from the jointly charged crimes with the armed robbery conviction, and sentenced each defendant to a seventeen-year term of imprisonment subject to the requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2, i.e., eighty-five percent of the term with parole ineligibility and a five-year term of parole supervision upon release; ordering, as well, the monetary penalties, assessments, fees and fines established by statute along with forfeiture of all monies and property seized from defendants. On the separate, individually charged second-degree weapon possession conviction, each defendant was sentenced to a concurrent prison term of five years, with similar terms regarding monetary responsibilities and property forfeiture. Thomas's judgment of conviction specified that his five-year sentence on the latter conviction was to be "with 5 years parole ineligibility[.]" No such provision appears in defendant Stevenson's judgment of conviction.
Both defendants have appealed from the convictions and the sentences. We consolidate the appeals for the purposes of this opinion.
Counsel on defendant Stevenson's behalf raises the following arguments on appeal:
THE TRIAL COURT ERRED IN FINDING THAT THE IDENTIFICATION PROCEDURE USED WAS NOT SO IMPERMISSIBLY SUGGESTIVE AS TO REQUIRE EXCLUSION OF THE RESULTING OUT-OF-COURT IDENTIFICATIONS AT TRIAL.
THE ADMISSION, ON TWO OCCASIONS, OF HIGHLY PREJUDICIAL TESTIMONY THAT INDICATED THE DEFENDANT HAD A RECORD OF PRIOR CRIMINAL ACTIVITY, AND THE FAILURE TO GIVE ADEQUATE CURATIVE INSTRUCTION, DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. ...