On appeal from the Superior Court of New Jersey, Law Division, Essex County, 95-06-2295-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2007
Before Judges Skillman and Winkelstein.
On June 27, 1995, an Essex County grand jury indicted defendant Jermaine Walker, charging him with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (counts two through five); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count six); first-degree murder, N.J.S.A. 2C:11-3 (count seven); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count eight); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count nine); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (counts ten and twelve); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts eleven and thirteen); third-degree possession of an assault firearm, N.J.S.A. 2C:39-5f (count fourteen); third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a (count fifteen); and possession of a CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5b(2) (count sixteen).
Counts one through twelve were tried in March 1996. During trial, the court dismissed count four, the charge of robbery of Darlene Pollenitz. She was shot and killed during the robbery, which was the criminal act upon which the felony murder charge in count six was based. The State therefore made a motion to base the felony murder charge on the robbery of Alberdeen Allen, count five. The court granted the motion.
The jury acquitted defendant on counts seven and eight, the murder of Pollenitz and the attempted murder of Paula Alford, and found him guilty on all other counts. Pursuant to a plea agreement, defendant pleaded guilty to counts twelve, fourteen and fifteen, and the court dismissed counts thirteen and sixteen.
For sentencing, the judge merged count one with count two and imposed fifteen-year prison terms on counts two and three, concurrent. He merged counts five, seven, and eleven with count six, and on the latter count, imposed a thirty-year prison term with thirty years of parole ineligibility, consecutive to the sentence on count two. On count nine, the judge imposed a seven-year term, concurrent with count six; and on counts twelve, fourteen and fifteen, the judge imposed five years on each, also concurrent to the sentence imposed on count six.
On direct appeal, defense counsel raised the following issues:
THE JURY CHARGE ON THE CRITICAL ISSUE OF IDENTIFICATION, WHICH WAS NOT TAILORED TO REFLECT THE COMPLICATED AND CONFILCTING EVIDENCE, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL, AND AMOUNTED TO PLAIN ERROR. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
SINCE THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT DEFENDANT WAS INVOLVED IN THE ATTEMPTED ROBBERY (COUNT 2) AND AGGRAVATED ASSAULT (COUNT 9) OF PAULA ALFORD, THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL ON THOSE COUNTS.
THE TRIAL COURT IMPROPERLY RAN THE 15-YEAR SENTENCE ON THE ROBBERY CONVICTIONS CONSECUTIVE TO THE 30-YEAR SENTENCE ON THE FELONY MURDER CONVICTION.
Defendant also submitted a pro se supplemental brief, raising the following points:
DEFENDANT'S FELONY MURDER CONVICTION IS BARRED BY THE COLLATERAL ESTOPPEL PRINCIPLES OF THE DOUBLE JEOPARDY DOCTRINE, BECAUSE THE TRIAL COURT DISMISSED, FOR LACK OF EVIDENCE, THE SOLE PREDICATE FELONY CHARGED IN THE FELONY MURDER COUNT OF THE INDICTMENT.
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT DEFENDANT'S CONVICTION AS AN ...