On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-10-1249.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2007
Before Judges Payne and Messano.
Defendant Eric Smith was indicted by the Union County grand jury and charged with carjacking in the first degree, N.J.S.A. 2C:15-2; robbery in the first degree, N.J.S.A. 2C:15-1; possession of a weapon for an unlawful purpose in the third degree, N.J.S.A. 2C:39-4d; unlawful possession of a weapon in the fourth degree, N.J.S.A. 2C:39-5d; and possession of a controlled dangerous substance in the third degree, N.J.S.A. 2C:35-10a(1). At trial, he was convicted by the jury of all charges.
After appropriate mergers, the judge sentenced defendant to twenty-eight years imprisonment with an eighty-five percent parole disqualifier under NERA*fn1 on the carjacking conviction, and eighteen years imprisonment with an eighty-five percent parole disqualifier under NERA on the robbery conviction, to be served concurrently. On the drug conviction, defendant received a consecutive sentence of five years imprisonment.
On appeal, defendant raises three points for our consideration.
TWO TESTIMONIAL REFERENCES BY THE STATE'S CHIEF WITNESS, DETECTIVE ANTHONY MARRA, THAT THE DEFENDANT WAS REPRESENTED BY THE "PUBLIC DEFENDER" IMPLIED THAT THE DEFENDANT WAS POOR, DENIED THE DEFENDANT  HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL BECAUSE SUCH AN INFERENCE, ESPECIALLY WHEN THE DEFENDANT WAS CHARGED WITH ROBBERY AND CARJACKING, WAS GROSSLY PREJUDICIAL. (Partially Raised Below.)
THE COURT'S FAILURE TO DECLARE A MISTRIAL OR AT A MINIMUM TO VOIR DIRE THE JURY TO DETERMINE IF THE JURY WAS REASONABLY CERTAIN THAT FURTHER DELIBERATIONS WOULD NOT BE PRODUCTIVE, DENIED THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below.)
THE DEFENDANT'S AGGREGATE SENTENCE OF 28 YEARS WITH 23.8 YEARS OF PAROLE INELIGIBILITY FOR CARJACKING IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
After consideration of these arguments in light of the record and applicable legal standards, we affirm.
The State's evidence at trial revealed that on June 11, 2004, after exiting the Stop and Shop supermarket in Union, Leo Cahalan was accosted in the parking lot as he entered his car. Surveillance tapes from the scene revealed that his attacker was an African-American male wearing a hooded sweatshirt. Cahalan testified the man entered on the passenger side of his car, "produced a knife and thrust it toward [him]," and demanded cash and the car. Cahalan complied by giving the man $140 in cash and leaving the keys in the ignition before exiting the vehicle. The assailant drove off.
Cahalan gave a physical description of the carjacker to the police and he viewed two photographic arrays prepared by them. One array contained a photograph of defendant, but Cahalan could not identify any photo as that of the perpetrator. At trial, Cahalan could not identify defendant, though he did identify a knife, subsequently seized from defendant at the time of his arrest, as the one used by the attacker. Cahalan was asked if the State's next witness, Maynor McGuire, seated in the courtroom at the time, was his assailant. Cahalan responded that he was "almost positive" that McGuire was not.
McGuire, a self-described acquaintance of defendant, testified that two days after the carjacking, as he stood on a street corner in Newark, defendant drove up in Cahalan's car. Defendant claimed to have gotten the car from "a white man in Union." McGuire asked to borrow it, defendant agreed, and, after driving the vehicle for only fifteen or twenty minutes, McGuire was involved in a motor vehicle accident. The police responded, arrested him, and ...