On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-0116.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Weissbard, and Payne.
Defendant, Ian Lemons, appeals from his conviction after a jury trial in June 2005, on all ten counts of an indictment charging the following offenses: first-degree robbery, N.J.S.A. 2C:15-1 (count one); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four); first-degree attempted murder, N.J.S.A. 2C:11-3a(1)(2) and N.J.S.A. 2C:5-1 (count five); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count six); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count seven); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count eight); and two counts of second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (counts nine and ten).
On August 5, 2005, after denying defendant's motion for a new trial, the court imposed the following sentence: count one, eighteen years with an eighty-five percent parole disqualifier and five years of parole supervision upon release; count two merged into count one; count three merged into count one; count four, five years with two and one-half years of parole ineligibility, concurrent to count one; count five, twenty years with an eighty-five percent parole disqualifier, five years of parole supervision upon release, to be served consecutive to count one; count six merged into count five; count seven merged into count five; count eight merged into count seven; count nine, eight years with five years of parole ineligibility, consecutive to counts one and ten; count ten, eight years with five years of parole ineligibility, consecutive to counts five and nine.
On August 14, 2004, nineteen-year-old Calvin Gunn was walking home from his job as a bellman at the Taj Mahal Casino in Atlantic City. On his way home, around 7:30 in the morning, Gunn stopped at the Cedar Market to purchase cigarettes for himself and his mother. At that time, Gunn was carrying his tip money, in addition to a paycheck from the Taj Mahal.
Inside the Cedar Market, Gunn observed a black male in his early twenties wearing a black and white NBA hat, with his hair in cornrows, waiting at the counter. Gunn stated that the person's height was approximately five-nine or five-ten and that the person had a scruffy beard. After waiting approximately two minutes, during which time Gunn was so close that he could have reached out and touched the person, Gunn asked the man if he was done at the cash register. The man allowed him to go ahead of him and Gunn proceeded to purchase his cigarettes and leave.
As Gunn was walking home, he noticed the man from the Cedar Market standing in the doorway of a building. As Gunn walked past the doorway, the individual stepped out and placed a silver semi-automatic weapon to Gunn's back and told him to walk around the corner to an alleyway. Gunn was able to see the gun prior to it being placed against his back. When they reached the alley, the individual reached into Gunn's back pockets and removed his wallet, cash, and the cigarettes while Gunn surrendered his paycheck.
After taking these items, the perpetrator walked to a silver Hyundai Elantra, sat there for a moment, then drove off. Gunn contacted the police, but by the time they arrived the man was gone. The officers who responded drove Gunn around in search of the robber. Gunn told the police that if given the opportunity he would be able to identify the person who had robbed him.
Three days later, on August 17, 2004, Gunn was walking to his girlfriend's house when he noticed a group of men sitting on a porch. One of the men broke away from the group and started walking quickly towards Gunn and reached under his shirt as if for a gun. Gunn recognized this person as the man who had robbed him three days prior and began to run. He ran around the corner to the apartment building of his friend, Anthony. As Gunn entered the building he slammed the door behind him, catching the perpetrator's arm in the door. Gunn then opened the door, and slammed it again to close the door, and ran up to the third floor where Anthony lived.
Gunn waited with his friend until he believed that it would be safe to leave. He did not contact the police at this point because he believed the individual would have already fled, and because the police had not done anything the first time he called, and because he did not want to be branded as a "snitch." After waiting awhile, Gunn proceeded to his girlfriend's home without incident and remained there for some time.
While at his girlfriend's home, Gunn got a call from his friend, Richard Trotter, to return to Anthony's home to play a newly released X-box game. Trotter picked Gunn up at the girlfriend's house, and as the two of them walked to Anthony's place, Gunn began to tell Trotter what had happened earlier. The two stopped to speak to a group of friends around the same place where Gunn had initially seen the robber earlier in the day. As the two continued to Anthony's place, Gunn stopped to tie his shoe. When he stood up, he realized that the man who had chased him earlier and who had robbed him three days before was "right there in [his] face." Gunn saw a gun pointed at him and attempted to push it out of his face. As he did so, the assailant fired the gun causing a bullet to lodge in Gunn's wrist. Gunn testified that he only heard two shots, and that he believed that only his hand and arm had been hit. The gunman then fled on foot.
Trotter called an ambulance and Gunn was transported to a nearby hospital for treatment. Gunn had also sustained at least two shots to his abdomen and had to undergo surgery. He testified that he did not recall speaking to officers at the scene, but the officers who responded testified that Gunn described his attacker as a light-skinned black male in his twenties with cornrows, wearing an orange shirt and blue jeans.
Two days after the incident, police obtained a taped statement from Gunn. Approximately one week after the incident, and following Gunn's discharge from the hospital, officers visited Gunn at his home. The officers showed Gunn three different photo arrays after telling him that the perpetrator might not be in the lineup. After examining them, Gunn identified a picture of the defendant as the person who had robbed him and shot him on August 14 and 17, respectively. Gunn based his identification not on defendant's hairstyle, but on defendant's facial features. He also identified defendant during the trial as the person who robbed and shot him.
Trotter was uncooperative with the investigation. He refused to give a taped statement or to fill out any forms when asked by the police. He told the police that he ran to the side of the building when the shooting started and remained there until it concluded. As a result, the shooter had his back to Trotter and he did not see his face. Trotter was also unable to give any specific description of the shooter.
Defendant was arrested on November 23, 2004, at the Atlantic City Medical Center, under the name Jamal Anderson. Defendant testified that he was using that name because of an outstanding warrant for failure to appear in court on an eluding charge.
At trial, defendant testified that at the time of the shooting he did not wear his hair in cornrows, but rather in box braids, which are different from cornrows. He also testified that, other than while in county lockup, he had never worn orange clothing in his life. Initially, defendant presented an alibi statement that he was at a baby shower on the day of the shooting. It was later determined that the baby shower occurred on a separate date and defendant testified that he could not recall where he was on the day of the shooting.
On appeal, defendant, through counsel, presents the following arguments:
THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT DENIED THE DEFENSE REQUEST FOR A WADE HEARING.
THE DEFENDANT WAS DENIED THE FUNDAMENTAL RIGHT TO CROSS-EXAMINE THE VICTIM/WITNESS, AND DEFENDANT'S MOTION FOR MISTRIAL, AFTER THE COURT REVERSED ITS ORIGINAL RULING AND PRECLUDED DEFENDANT FROM CROSS-EXAMINING THE VICTIM WITH PHOTOGRAPHS OF OTHER PERSONS WHO LOOKED LIKE THE DEFENDANT, SHOULD HAVE BEEN GRANTED.
THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE ONLY EVIDENCE WAS IDENTIFICATION OF THE DEFENDANT, COUNSEL FAILED TO TIMELY MOVE FOR A WADE HEARING, COUNSEL FAILED TO ADEQUATELY ATTACK AND PRESENT EVIDENCE TO CONTRADICT OR QUESTION THE EYEWITNESS IDENTIFICATION, AND COUNSEL ADMITTED THAT HE HAD INSUFFICIENT TIME TO PREPARE FOR TRIAL.
THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR CONSIDERATION OF AGGRAVATING SENTENCING FACTOR 1 DUE TO INADEQUATE JURY INSTRUCTIONS (Not Raised Below).
THE CONSECUTIVE N.E.R.A. SENTENCES AMOUNTING TO IMPRISONMENT FOR FIFTY-FOUR YEARS WITH PAROLE INELIGIBILITY OF FORTY-TWO YEARS, THREE MONTHS AND NINETEEN DAYS WERE EXCESSIVE.
In a supplemental pro se brief, defendant argues:
THE POLICE CANNOT ISSUE AN ARREST-WARRANT BY SIGNING THE JURAT ...