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State v. Johnson

July 23, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARRYL JOHNSON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, 03-02-0188.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: July 3, 2007

Before Judges Axelrad and Winkelstein.

Defendant Darryl Johnson was convicted by a jury of two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts one and two); second-degree burglary, N.J.S.A. 2C:18-2b(2) (count three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five). Counts four (unlawful possession of a weapon) and six (terroristic threats) were dismissed. Following trial, defendant pled guilty to second-degree being a person prohibited from possessing a weapon, N.J.S.A. 2C:39-7b (count seven). The court imposed a seven-year term on the burglary conviction (count three) subject to an 85% NERA period of parole ineligibility. Concurrent terms were imposed on the other convictions as follows: eighteen months with an eighteen-month parole disqualifier on each of counts one and two, seven years on count five, and seven years with a five-year parole disqualifier on count seven. Appropriate fees and penalties were also assessed.*fn1

Defendant asserts the following arguments on appeal:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THE HANDWRITTEN STATEMENTS OF LASHONDA FURBY AND PATRICK BROWN, AND THE UNRECORDED TELEPHONE STATEMENTS OF NATASHA JACKSON, WERE SUFFICIENTLY RELIABLE TO BE ADMITTED INTO EVIDENCE AS PRIOR INCONSISTENT STATEMENTS PURSUANT TO N.J.S.A. 803(A)(1).

(A) THE STATE FAILED TO PROVE THAT THE HANDWRITTEN STATEMENTS OF LASHONDA FURBY AND PATRICK BROWN WERE SUFFICIENTLY RELIABLE TO BE ADMITTED INTO EVIDENCE AS SUBSTANTIVE EVIDENCE.

(B) THE TRIAL COURT FAILED TO RECOGN[I]ZE AND INSTRUCT THE JURY THAT NATASHA JACKSON'S PRIOR INCONSISTENT STATEMENTS WERE OFFERED SOLELY TO "NEUTRALIZE" HER TRIAL TESTIMONY.

POINT II

THE ABSENCE FROM THE TRIAL COURT'S CHARGE OF ANY REFERENCE TO THE PRINCIPLES OF STATE V. KOCIOLEK CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).

POINT III

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE ...


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