On appeal from Superior Court of New Jersey, Law Division, Essex County, 04-11-3540-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Collester and Miniman.
Defendant Elijah Comer was indicted by an Essex County grand jury for first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count two); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count three); and second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count four). Tried to a jury, he was convicted of second-degree robbery as a lesser-included offense of count one and of all the other counts of the indictment. On July 15, 2005, defendant was sentenced by the trial judge, Judge John C. Kennedy, to an aggregate sentence of seven years imprisonment with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals his convictions and sentence, setting forth the following contentions:
POINT I -- THE JURY'S VERDICT OF GUILT ON THE ROBBERY COUNT WAS RENDERED UNRELIABLE BY THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY THAT AGGRAVATED ASSAULT AS ALLEGED IN COUNT FOUR WAS A LESSER-INCLUDED OFFENSE OF ROBBERY AS ALLEGED IN COUNT ONE. (Partially Raised Below.)
POINT II -- THE PROSECUTOR'S TRIAL TACTICS GROSSLY EXCEEDED THE BOUNDS OF PROPRIETY, THEREBY DEPRIVING COMER OF A FAIR TRIAL. (Partially Raised Below.)
A. DESPITE THE JUDGE'S FINDING TO THE CONTRARY, THE PROSECUTOR TOLD THE JURY THAT COMER'S PRIOR JUVENILE ARRESTS COULD BE USED FOR THE PURPOSE OF AFFECTING COMER'S CREDIBILITY.
B. THE PROSECUTOR'S REPEATED EFFORTS TO IMPUGN COMER'S DEFENSE WERE IMPROPER AND PREJUDICIAL.
C. THE PROSECUTOR'S REPEATED SUGGESTIONS THAT COMER HAD A BURDEN OF PROOF WERE IMPROPER AND PREJUDICIAL.
POINT III -- IN LIGHT OF THE FACT THAT COMER HAD NO PRIOR SUPERIOR COURT CONVICTIONS, A MID-RANGE "NERA" SENTENCE ON THE ROBBERY COUNT WAS EXCESSIVE.
On August 7, 2004, Darin Hamlin was working as a CD and DVD salesman on the street outside a supermarket in Orange. That evening he returned to his home, an apartment in a high rise apartment building at 991 Frelinghuysen Avenue in Newark. He was carrying two bags, one filled with CDs and the other with DVDs, and he was listening to music through his CD player and earphones. It was about 9:45 p.m. when he opened the door to his building and heard someone say, "Hold that door." Hamlin did so and let in someone he recognized and knew as Eli, later identified as the defendant. Hamlin, defendant, and another man got into the elevator. The defendant asked Hamlin which floor he was going to and pushed the button for the fifteenth floor. The unknown man got off the elevator at the seventh or eighth floor leaving Hamlin and defendant alone. After the elevator doors closed the defendant said to Hamlin, "Give me your shit." Hamlin thought defendant was joking until defendant grabbed his shirt and Hamlin saw the tip of a knife in defendant's other hand. The two men struggled until the elevator reached the fifteenth floor. When the doors opened the defendant pulled Hamlin, and the bags of CDs and DVDs fell to the floor. As Hamlin tried to resist defendant, he was stabbed in the right shoulder. When defendant loosened his grip, Hamlin escaped and ran down the emergency staircase to look for the security officer in the building. Unsuccessful, he then ran to an adjacent building, but still found no security officers. He then went to his friend's home and called the police and an ambulance. When the police arrived, Hamlin gave Newark Police Officer Dwayne Reeves a description of the person named Eli who stabbed and robbed him. Officer Reeves observed that Hamlin's right shoulder was blood-soaked. When the ambulance arrived, Hamlin was taken to Newark Beth Israel Medical Center for treatment of his shoulder wound.
Hamlin later told police that when he managed to escape on the fifteenth floor, he saw a man from the building known as "Junie Bug" in the hallway. That person, named Robert Carver, testified at defendant's trial that he had just gotten off the elevator on the fifteenth floor when he noticed two men arguing in the hallway. As he passed them, one of them told him to mind his own business. Carver did not look back until he entered his apartment and saw one of the men running down the hallway.
The last witness for the State was Detective Cynthia Baker of the Newark Police Department who spoke to Hamlin two days after the offense. After Hamlin described Eli to her, Baker showed him a photograph of the defendant. Hamlin identified the ...