On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-06-00526.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2007
Before Judges Cuff, Lisa and Lihotz.
Tried to a jury, defendant was convicted of second-degree attempted aggravated assault, N.J.S.A. 2C:14-2a(1) and N.J.S.A. 2C:5-1a(3) (count one); third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:24-4a and N.J.S.A. 2C:5-1a(3) (count two); and third-degree luring, N.J.S.A. 2C:13-6 (count three). Defendant was sentenced on count one to eight years imprisonment, subject to an 85% parole disqualifier and three years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On counts two and three, defendant was sentenced to four-year prison terms, concurrent with each other and with count one.*fn1
In the brief submitted by his attorney, defendant raises the following arguments:
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S DENIAL OF DEFENSE COUNSEL'S MOTION TO DISCHARGE THE JURY AND BEGIN JURY SELECTION ANEW AFTER A PROSPECTIVE JUROR PROVIDED INFORMATION DURING JURY VOIR DIRE ASSOCIATING THE DEFENDANT WITH THE OFFICE OF THE PUBLIC DEFENDER.
THE TRIAL COURT ERRED IN PRECLUDING DEFENSE COUNSEL FROM PRESENTING AN IMPORTANT DEFENSE WITNESS.
THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT II CHARGING ENDANGERING THE WELFARE OF A CHILD INTO COUNT I CHARGING ATTEMPTED SEXUAL ASSAULT.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.
In a supplemental pro se brief, defendant raises the following additional arguments:
THAT THE ACTIONS OF THE APPELLANT DID NOT VIOLATE THE STATUTES BROUGHT FOURTH BY THE STATE OF NEW JERSEY
THAT DETECTIVE DUNN DID NOT HAVE PROBABLE CAUSE. THE APPELLANT WAS DENIED DUE PROCESS OF THE LAW THIRD POINT OF ARGUMENT THAT DETECTIVE DUNN DID NOT HAVE JURISDICTION TO ENTER AOL TO CONDUCT AN INVESTIGATION. THE APPELLANT WAS DENIED DUE PROCESS OF THE LAW FOURTH POINT OF ARGUMENT THAT THE APPELLANT WAS DENIED EQUAL PROTECTION OF THE LAW FIFTH POINT OF ARGUMENT THE JUDGE'S CHARGE TO THE JURY WAS ERRONEOUS, WHICH LEAD TO THE APPELLANT TO ONLY BEING ABLE TO BE CONVICTED BY THE JURY WITH NO AVENUE FOR INNOCENTS, DENYING HIM HIS RIGHT TO A FAIR AND IMPARTIAL JURY, AND VIOLATING HIS RIGHT TOWARDS DUE PROCESS.
With respect to Point VI in counsel's brief, the State concedes and we agree that the matter must be remanded for resentencing on count one pursuant to State v. Natale, 184 N.J. 458 (2005). Accordingly, we will not further address the arguments in Point VI, nor will we address the other sentencing arguments, which are contained in Point V of counsel's brief.
We agree with the merger argument raised in Point IV of counsel's brief, and, for the reasons we will later discuss, we direct that count two be merged with count one.
We reject the remaining arguments in both briefs. The arguments raised in Point III of counsel's brief, and the arguments raised in the Second and Fifth Points of appellant's pro se brief lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we will not discuss them.
Accordingly, we affirm defendant's conviction on all three counts and his sentence on count three, but we remand for entry of an amended judgment of conviction reflecting the merger of count two with count one and for ...