On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-07-1104.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Cuff, Lisa and Lihotz.
A Middlesex County Grand Jury returned a twenty-five count indictment charging defendant, and co-defendants, Jalonn Lassiter and Kyle Parker-Hall, with criminal offenses in the burglary of 82 Central Avenue, New Brunswick, and in the armed robberies, aggravated sexual assaults and kidnapping of the victims who resided at 31 Stone Street, New Brunswick, which occurred on March 8, 2004.*fn1 After a jury trial, defendant was found guilty of third-degree burglary of 82 Central Avenue, N.J.S.A. 2C:18-2 (count six), which is a lesser offense of the original charge in the indictment as the jury could not agree whether the offense was committed while armed; third-degree theft of property in excess of $500, from the resident of 82 Central Avenue, N.J.S.A. 2C:20-3 (count seven); second-degree conspiracy to commit armed-burglary,*fn2 N.J.S.A. 2C:5-2, and N.J.S.A. 2C:18-2(a) (count one); and second-degree burglary of 31 Stone Street, N.J.S.A. 2C:18-2 (count eight). Defendant was acquitted of second-degree possession of a weapon (handgun), N.J.S.A. 2C:39-4a (count five) and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count seventeen).
No verdict was reached on the charges of third-degree possession of the weapon (box cutter) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); and the five counts of first-degree robbery, N.J.S.A. 2C:15-1, (counts nine through thirteen).
On March 11, 2005, defendant's motion for a new trial was denied. After merger of count one, defendant was sentenced on count eight to a ten-year prison term with an eighty-five-percent period of parole ineligibility under the "No Early Release Act," N.J.S.A. 2C:43-7.2; and on counts six and seven, to four-year prison terms to be served concurrently with each other but consecutively with the term imposed on count eight. This resulted in an aggregate prison sentence of fourteen years with an eight and one-half year period of parole ineligibility. Applicable monetary sanctions were levied.
On appeal defendant presents the following arguments for our consideration:
THE TRIAL COURT SUA SPONTE SHOULD HAVE EITHER PRECLUDED RAYMOND DARGAN, AND SAMPSON COLEMAN FROM TESTIFYING AS STATE'S WITNESSES IN PRISON GARB OR DECLARED A MISTRIAL. (U.S. Const. Amend VI; N.J. Const. (1947) Art. I, Para 10) (NOT RAISED BELOW).
THE TRIAL COURT SUA SPONTE SHOULD HAVE EXCLUDED THE TESTIMONY REGARDING LASSITER'S SEXUAL ASSAULT ON C.D. AND M.L. AND PARKER-HALL'S SEXUAL ASSAULT ON N.R. AS EITHER IRRELEVANT OR BECAUSE ITS NON-EXISTENT PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY ITS PREJUDICIAL EFFECT CONTRARY TO N.J.R.E. 403. (U.S. Const. Amend VI; N.J. Const. (1947) Art. I Para 10) (NOT RAISED BELOW).
THE TRIAL COURT SUA SPONTE SHOULD HAVE EXCLUDED THE TESTIMONY REGARDING [DEFENDANT'S] OTHER CRIME AND BAD ACTS PURSUANT TO N.J.R.E. 404(b) AND N.J.R.E. 403, NAMELY HIS ARREST FOR POSSESSION OF MARIJUANA. (U.S. Const. Amends VI & XIV; N.J. Const. (1947) Art. I, Para 10 (NOT RAISED BELOW).
THE TRIAL COURT SUA SPONTE SHOULD HAVE EXCLUDED SAMPSON COLEMAN'S TESTIMONY REGARDING [DEFENDANT'S] STATEMENTS IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO COUNSEL WHEN COLEMAN WAS USED BY THE STATE AS AN INVESTIGATORY TOOL WITH THE SPECIFIC INTENT OF EXTRACTING INCRIMINATING INFORMATION FROM [DEFENDANT]. (U.S. Const. Amends V, VI & XIV; N.J. Const. Art I, Para 10 (NOT RAISED BELOW).
THE TRIAL COURT SUA SPONTE SHOULD HAVE EXCLUDED THE LETTER CONFISCATED BY THE POLICE FROM [DEFENDANT'S] JAIL CELL FROM EVIDENCE BECAUSE [DEFENDANT'S] FEDERAL AND STATE RIGHTS TO COUNSEL WERE VIOLATED IN THAT PROCESS. (U.S. Const. Amends V & VI; N.J. Const. (1947) Art. I Para 10) (NOT RAISED BELOW).
THE TRIAL COURT REVERSIBLY ERRED IN FAILING SUA SPONTE TO ISSUE A JUDGMENT OF ACQUITTAL REGARDING COUNTS SIX AND SEVEN, AND IN REJECTING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT EIGHT OF THE INDICTMENT, NAMELY BURGLARY AND THEFT AT 82 CENTRAL AVENUE AND BURGLARY WHILE ARMED AT 31 STONE STREET BECAUSE OF THE LACK OF A PRIMA FACIE CASE. (U.S. Const. Amends V & VI; N.J. Const. (1947) (Art. I Para 10) (NOT RAISED BELOW).
THE TRIAL COURT REVERSIBLY ERRED IN REJECTING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL BASED UPON INCONSISTENT VERDICTS, LACK OF SUPPORT IN THE RECORD AND CONFUSING INSTRUCTIONS. (U.S. Const. Amend VI; N.J. Const. (1947) Art. I Para 10).
THE TRIAL COURT REVERSIBLY ERRED IN OVERRULING DEFENSE COUNSEL'S OBJECTION TO THE PROSECUTOR'S USING [DEFENDANT'S] NEW YORK CONVICTION TO IMPEACH HIS CREDIBILITY WHEN HE TOOK THE STAND. (U.S. Const. Amend VI; N.J. Const. (1947) Art. I Para 10).
THE TRIAL COURT UNDULY COERCED THE HUNG JURY TO REACH A PARTIAL VERDICT IN THE CASE AT BAR. (U.S. Const. Amend VI; N.J. Const. (1947) Art. I Para 10).
[DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE OF DEFENSE COUNSEL FOR (1) FAILING TO OBJECT TO THE SUGGESTIVE MANNER IN WHICH THE PROSECUTOR HAD DONALD J. CRONE MAKE AN IN-COURT IDENTIFICATION OF HEARD AS BEING AT THE WOMEN AND CHILDREN'S PAVILION OF ST. PETER'S UNIVERSITY HOSPITAL AT 3:00 A.M. ON MARCH 8, 2004 AND (2) FOR FAILING TO REQUEST A UNITED STATES V. WADE, SUPRA, HEARING ON WHETHER ANY OUT-OF-COURT IDENTIFICATION PROCEDURES USED ON MR. CRONE WERE SO UNDULY ...