On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Ind. No. 05-04-0558.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Gilroy.
On April 27, 2005, defendant Kenneth LeFurge and co-defendant Andrew Vadas were indicted on Ocean County indictment number 05-04-00558, charging them with first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7b (count four). Before trial, the State dismissed counts two, three and four. A juvenile complaint was also issued against A.W., on charges stemming from the same incident.
Immediately before trial, Vadas accepted a plea agreement, which provided that he would enter a guilty plea and testify against defendant in exchange for a three-year sentence, with a No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA) 85% parole ineligibility period. A.W. also accepted a plea arrangement in his delinquency adjudication in exchange for his testimony. After a two-day jury trial, defendant was found guilty of first-degree robbery.
At sentencing on March 17, 2006, the State's motion for an extended sentence was denied. The sentencing judge found aggravating factors three (risk defendant will commit another offense) and nine (need to deter defendant and others from violating the law) were present, as were mitigating factors two (no serious harm contemplated) and five (victim's conduct facilitated the commission of the offense). In balancing the factors, the sentencing judge found that the aggravating factors "in some way outweigh[ed]" the mitigating factors. Defendant was sentenced to a fifteen-year term, of which NERA required that he serve 85 percent before being eligible for parole.
On appeal, defendant makes the following arguments for our consideration:
THE COURT'S FAILURE TO GIVE A LIMITING INSTRUCTION CONCERNING THE TWO CO-DEFENDANTS' GUILTY PLEAS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS AND A FAIR TRIAL (Not Raised Below).
DURING SUMMATION, THE PROSECUTOR IMPROPERLY BOLSTERED THE CREDIBILITY OF STATE'S WITNESSES AND IMPROPERLY ENCOURAGED THE JURY TO TAKE INTO ACCOUNT SENTENCING CONSIDERATIONS, THEREBY DENYING DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO DUE PROCESS U.S. CONST. AMEND VI, XIV; N.J. CONST., ART. I, ¶¶ 1 AND 10 (Not Raised Below).
A. The Prosecutor Improperly Told the Jury the Sentencing Range for First-Degree Murder and the Co-defendants' Sentences, Which Encouraged the Jury to Draw Inferences About LeFurge's Culpability or Likely Sentence.
B. During Closing Remarks, the Prosecutor Improperly Expressed His Opinion About the Credibility of the State's Witnesses, Utilizing Information Not Presented to the Jury During the Trial.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ...