On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 05-03-0462 and 04-10-3235.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2007
Before Judges R. B. Coleman and Lyons.
Defendant Wajeehah Jacobs appeals from two judgments of conviction, pursuant to which she was sentenced to an aggregate term of ten years in prison.*fn1 Although we remand the matter for reconsideration of the sentence in light of State v. Natale, 184 N.J. 458 (2005), we otherwise affirm the judgment of conviction.
On June 8, 2004, while in the parking lot of the Garden Spires, a gated community in Newark, defendant allegedly rammed her automobile into Evelyn Malachi. She then backed up a second time and rammed Malachi again. The victim was positioned underneath the front end of the vehicle after the first impact and impaled into a fence after the second. Then, ignoring verbal warnings by security personnel to stop, defendant sped out of the Garden Spires housing complex onto the streets of Newark before she was eventually apprehended.
On October 12, 2004, defendant was charged under Essex County Indictment No. 04-10-3235 with the following offenses: first degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (count one); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); third degree terroristic threats, N.J.S.A. 2C:12-3a (count three); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count six); third degree possession of a weapon for an unlawful possession, N.J.S.A. 2C:39-4d (count seven); and second degree eluding, N.J.S.A. 2C:29-2b (count eight).
Defendant was tried before a judge and a jury on March 22, 23, 29, 30, 31 and April 1, 2005. On the last day of trial, the jury returned its verdict finding defendant guilty of aggravated assault (count two); unlawful possession of a weapon (count four); possession of a weapon for an unlawful purpose (count five) and eluding (count eight). The jury acquitted defendant of attempted murder (count one), terroristic threats (count three), aggravated assault (count six), and possession of a weapon for an unlawful purpose (count seven).
In a separate indictment, No. 05-03-0462, issued on March 1, 2005, defendant was charged with third degree possession of heroin, N.J.S.A. 2C:35-10(a) (count one); third degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5(b)(3) (count two); third degree possession of heroin with the intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three); second degree possession of heroin with intent to distribute within a public housing zone, N.J.S.A. 2C:35-7.1 (count four); and third degree resisting arrest, N.J.S.A. 2C:29-2 (count five). On May 16, 2005, defendant pled guilty to count three, possession of heroin with the intent to distribute within 1000 feet of school property. Pursuant to the plea agreement, defendant was to receive a five-year sentence with a thirty-month period of parole ineligibility as part of the drug possession plea. That sentence was to run concurrent with any sentences to be imposed for the convictions stemming from the trial of charges under Indictment No. 04-10-3235. The rest of the counts of the indictment were to be dismissed, as was Indictment No. 04-10-3191, in which defendant had been charged with second degree aggravated assault, fourth degree unlawful possession of a weapon, and third degree possession of a weapon for an unlawful purpose.
On June 3, 2005, Judge Casale sentenced the defendant to a term of ten years subject to the eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), for the conviction for second degree aggravated assault. The court merged count five, possession of a weapon for an unlawful purpose, with count two, aggravated assault. For eluding, count eight, defendant was sentenced to a concurrent ten-year prison term. On the conviction for unlawful possession of a weapon, count four, defendant received an eighteen-month concurrent sentence. The judge pronounced sentence on Indictment No. 05-03-0462, in accordance with the plea agreements. Also, consistent with the plea agreement, Indictment No. 04-10-3191 was dismissed. Thus, the aggregate custodial sentence resulting from the sentencing hearing of June 3, 2005 was ten years subject to the eighty-five percent NERA period of parole ineligibility. Ibid.
Defendant filed her notice of appeal on April 4, 2006, and in this appeal, she raises the following points of asserted error:
POINT I: TESTIMONY THAT A "JUDGE" WAS INVOLVED IN THE PROCESS OF ARRESTING THE DEFENDANT DEPRIVED DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).
POINT II: TESTIMONY THAT THE DEFENDANT WAS OPERATING THE VEHICLE "RECKLESSLY" CONSTITUTED IMPROPER PERSONAL OPINIONS THAT THE DEFENDANT WAS GUILTY OF THE CRIMES OF SECOND DEGREE AGGRAVATED ASSAULT ON COUNT TWO AND ...