On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Ind. No. 02-09-1153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Lihotz.
On May 5, 2004, George Pritchett was assaulted and robbed by two males, one of whom struck him with a baseball bat, as he was leaving the residence of a companion, Attrell Johnson (Attrell). The police recovered no physical evidence implicating the perpetrators. From a photo array, Attrell identified defendant Jeffrey Johnson a/k/a Jeffrey Gibson and co-defendant, Jerome Campbell as the men she saw that evening.
Defendant and Campbell were charged with first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (count one); (2) third-degree theft, N.J.S.A. 2C:20-3a and 2C:2-6 (count two); (3) third-degree aggravated assault, N.J.S.A. 2C:12-1b(7) and N.J.S.A. 2C:2-6 (count three); (4) third-degree possession of a weapon (a metal baseball bat) for an unlawful purpose, N.J.S.A. 2C:39-4d and N.J.S.A. 2C:2-6 (count four); and (5) fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d and N.J.S.A. 2C:2-6 (count 5).*fn1 Campbell accepted a plea agreement; he entered a guilty plea to first-degree robbery in exchange for a recommended ten-year sentence and the requirement that he provide truthful testimony regarding defendant's role in the robbery.
After a four-day jury trial, defendant was convicted on counts one through five and sentenced to eleven years incarceration with a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, 85% period of parole ineligibility on count one; four-year terms of imprisonment on each of counts two, three and four to run concurrently with the sentence on count one; and a twelve-month period of incarceration on count five to run concurrently with the sentence on count one. Defendant was additionally sentenced to two concurrent eighteen-month terms for fourth-degree probation violations. Applicable penalties and assessments were imposed.
Defendant raises the following arguments for our consideration on appeal:
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTIONS, AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
SINCE THE STATE'S WITNESS, JEROME CAMPBELL, NEVER MADE EITHER AN OUT-OF-COURT OR AN IN-COURT IDENTIFICATION OF DEFENDANT, THE COURT'S INSTRUCTIONS ON THESE SUBJECTS CONSTITUTED PLAIN ERROR (Not Raised Below).
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO EGREGIOUS PROSECUTORIAL MISCONDUCT ...