On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-04-1326.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Payne and Messano.
Defendant Andre Taylor was charged in a two count indictment with first-degree carjacking, in violation of N.J.S.A. 2C:15-2, and third-degree receiving stolen property, in violation of N.J.S.A. 2C:20-7. After trial, the jury acquitted defendant of carjacking, but found him guilty of the stolen property charge. Defendant was subsequently sentenced to five years imprisonment with two and one-half years of parole ineligibility, and the trial judge imposed the appropriate fines and penalties.
Defendant raises the following points for our consideration on appeal.
THE TRIAL JUDGE IMPROPERLY ORDERED THAT DEFENDANT BE HANDCUFFED DURING TRIAL. (Not Raised Below).
THE JURY INSTRUCTIONS ON RECEIVING STOLEN PROPERTY DID NOT MAKE IT CLEAR THAT IF, AS DEFENSE COUNSEL ARGUED, DEFENDANT WAS MERELY BRIEFLY INSIDE THE CAR LOOKING AROUND, HE WAS NOT IN POSSESSION OR CONTROL OF THE VEHICLE AND SHOULD BE FOUND NOT GUILTY. (Not Raised Below).
THE SENTENCE IMPOSED IS BOTH MANIFESTLY EXCESSIVE AND UNCONSTITUTIONAL.
After consideration of these contentions in light of the record and applicable legal standards, we affirm defendant's conviction, but remand the matter to the trial judge for re-sentencing.
Defendant's first contention has its genesis, and finds its only support, in a brief reference from the transcript of the proceedings below. Jury selection commenced on May 16, 2005, and was completed the following morning. Outside the presence of the jury, the judge considered defendant's motion to dismiss the ...