On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0502.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2007
Before Judges Parker and R. B. Coleman.
On March 3, 2005, an Essex County Grand Jury returned Indictment No. 05-03-0502, a ten-count indictment, which charged defendant Justin Lacy in the first four counts with the first degree attempted murder of Robert Thompson (count one), Dion Robinson (amended from Darlene Robinson) (count two), Frank Rokins, (count three) and Anthony Peaks (count four), N.J.S.A. 2C:5-1 and 2C:11-3. Counts five through eight charged second degree aggravated assault of Robert Thompson (count five), Dion Robinson (count six) Frank Rokins (count seven), and Anthony Peaks (count eight) N.J.S.A. 2C:12-1(b)(1). The final two counts charged third degree unlawful possession of a weapon (count nine), N.J.S.A. 2C:39-5b, and second degree possession of a weapon for an unlawful purpose (count ten), N.J.S.A. 2C:39-4(a).
The trial of the matter took place on October 4, 5, 6, 11, 12 and 17, 2005, and at its conclusion, the jury found defendant guilty of the attempted murder of Anthony Peaks (count 4), the second degree aggravated assault upon Anthony Peaks (count 8), the lesser-included third degree aggravated assault of Frank Rokins (count 7), and the two weapons charges (counts 9 and 10). He was acquitted on all other charges.
Before the scheduled sentencing date for those convictions, defendant entered into a plea agreement on a prior indictment, No. 05-05-1194. Pursuant to that November 14, 2005, plea agreement, defendant pled guilty to third degree possession of cocaine in Newark on July 19, 2004. In furtherance of the plea agreement, the State recommended dismissal of two additional counts charging, respectively, third degree possession of a controlled dangerous substance (CDS) with intent to distribute and third degree possession of CDS with intent to distribute in a school zone. Also, pursuant to the plea agreement, the State recommended a three-year sentence to be served by defendant concurrent to the sentence to be imposed in connection with Indictment No. 05-03-0502.
Based on the defendant's conviction for attempted murder, the court on December 22, 2005, imposed a fifteen-year prison term subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a fifty percent parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c), (d). Pursuant to NERA, defendant is also subject to five years of parole supervision upon release. The court merged the convictions for second degree aggravated assault and possession of a weapon for an unlawful purpose into the attempted murder conviction, and it imposed a four-year sentence for the conviction for third degree aggravated assault, to be served consecutive to the sentence for attempted murder. For the remaining conviction for unlawful possession of a weapon, the court imposed a concurrent four-year term.
The second judgment of conviction entered against defendant on December 22, 2005, was in accordance with a plea agreement that disposed of three counts of drug-related charges contained in Indictment No. 05-05-1194. The court imposed a three-year concurrent term in prison for the single count charging third degree possession of CDS, cocaine and dismissed the remaining counts.
On June 14, 2006, defendant appealed both judgments of convictions. Although the Notice of Appeal was received beyond the forty-five days allowed for the ordinary timely filing of a Notice of Appeal, it was accepted for filing according to criteria set forth in Section II of the Appellate Division Management Committee Minutes of March 16, 2000. The Notice of Appeal refers to both Indictment No. 05-03-0502 and Indictment No. 05-15-1194, however, we observe that the judgment of conviction on Indictment No. 05-15-1194 was the result of a plea agreement that appears to have been knowing and voluntary, and the three-year sentence in that matter was ordered to be served concurrently with and, therefore, subsumed within the fifteen-year term imposed in the judgment of conviction on Indictment No. 05-03-0502. In addition, none of the point headings of defendant's brief are directed at the plea entered with respect to Indictment No. 05-15-1194 or at the sentence imposed therein, and defendant has not identified any error with respect to that judgment of conviction. Accordingly, our analysis herein focuses on the judgment entered following the jury trial.
The charges in Indictment No. 05-03-0502 emanated from an incident that occurred at a pizzeria in East Orange on October 2, 2004. After an argument, defendant Justin Lacy and Anthony Peaks exited the pizzeria. Initially, they were shoving each other, however, defendant then took out a handgun and began firing at Peaks, striking him several times in the chest.
Frank Rokins and Robert Thompson, bail enforcement officers or bounty hunters for New Jersey Shields Fugitive Task Force, observed these events from a nearby twenty-four hour gas station. Rokins and Thompson were both armed and wearing bullet proof vests. They both displayed company badges around their neck. As defendant began running down the street, Rokins shouted, "fugitive task force, drop your weapon." Defendant responded by firing at the bounty hunters and continuing to flee. While Rokins was in pursuit, he and defendant exchanged fire and Rokins shot defendant in the leg, causing defendant to fall to the ground and drop his gun. Despite his injury, defendant got to his feet and continued running. The chase ended shortly thereafter when an unknown shooter fired on Rokins and Thompson, prompting them to take cover and lose the subject of their pursuit.
In the meantime, Thompson used his cell phone to call the police, and Newark Police Officers Sergio Peterira and Billy Correia, who were in the vicinity, arrived on the scene, to find "people just running all over the place," and a crowd of people hovering over a shooting victim, Peaks, who was lying on the pavement, bleeding. They immediately called for an ambulance.
Dion Robinson, who testified reluctantly at trial, indicated that she also was shot in the arm during the fracas. She was across the street from the pizzeria, and she saw Peaks and four or five others involved in an argument. She did not see anyone with a gun, but she heard gunshots and attempted to run. She saw two men she thought were cops with guns drawn, chasing a black male who also had a gun in his hand. Then she was struck in the arm by a stray bullet.
Robinson and Peaks were escorted to the University of Medicine and Dentistry of New Jersey (UMDNJ) for treatment, as Officer Correia spoke with the two bail enforcement officers, who were able to give Correia a description of the man they had been chasing. Correia then received a radio transmission regarding another gunshot victim. When he investigated the ambulance containing that additional victim, that person, defendant Justin Lacy, was found to have a gunshot wound to his leg. Officer Correia placed defendant under arrest.
On this appeal, defendant raises the following arguments:
THE STATE COMMITTED PROSECUTORIAL MISCONDUCT BY ARGUING IN SUMMATION FROM FACTS NOT IN THE RECORD AND BY IMPLYING THAT OTHER WITNESSES WHO COULD INCULPATE DEFENDANT EXISTED BUT WERE ...