On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-05-0729.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2008
Before Judges Parrillo and Gilroy.
Tried by a jury, defendant Alimean Turay, was convicted of second-degree robbery, N.J.S.A. 2C:15-1.*fn1 He was sentenced, as a persistent offender, N.J.S.A. 2C:44-3(a), to an extended term of fifteen years subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fees and penalties were also imposed. Defendant appeals. For reasons that follow, we remand for resentencing in accordance with State v. Pierce, 188 N.J. 155 (2006), and affirm the judgment of conviction in all other respects.
According to the State's proofs, on November 10, 2004, at about 3:50 p.m., fourteen-year old Yusef Mathis was walking home with his bike on Harrison Avenue in Jersey City. As he bent over to fix his pants, defendant grabbed him and dragged him into the hallway of a nearby apartment building. Defendant ordered Yusef to lay down on the stairs while he pulled out a gun and searched the boy's pockets. Defendant threatened to shoot Yusef if he did not find any money, but he eventually located twenty-five dollars. Defendant took the money, as well as Yusef's cell phone and bike.
While the robbery was occurring, Therashia Robinson, Yusef's cousin who rents a first floor apartment in the building, opened her door and saw defendant standing over a boy lying face down. Although she could not see the boy, Robinson recognized defendant, whom she had known for twelve years and who was the cousin of her daughter's father. She asked him what he was doing to the boy, whereupon defendant pointed a handgun at her and ordered her to get back inside her apartment. After she complied, defendant then ordered Yusef to take off his clothes and go upstairs. As soon as Robinson heard the outer door close, she went into the hall where she heard Yusef from the top of the dark stairway yell "It's me." Robinson then called Yusef's mother and the police.
Both Yusef and Robinson gave police defendant's name and description. They also gave separate statements to the police on November 17, 2004 and, on that same day, both identified defendant from a photo array. Crediting the State's proofs, the jury convicted defendant of second-degree robbery, a lesser included offense of the first-degree armed robbery charged in the indictment.
On appeal, defendant, through counsel, raises the following issues:
I. THE PROSECUTOR'S COMMENTS DURING SUMMATION CLEARLY EXCEEDED THE BOUNDS OF PROPRIETY AND REQUIRE A REVERSAL OF DEFENDANT'S CONVICTION. (PARTIALLY RAISED BELOW).
II. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW).
III. THE COURT ERRED IN IMPOSING AN EXTENDED TERM AND NERA WAS IMPROPERLY IMPOSED ON AN EXTENDED TERM SENTENCE.
In a supplemental brief, defendant pro se raises the following issue:
I. TRIAL COUNSELOR RENDERED INEFFECTIVE ASSISTANCE OF REPRESENTATION WHEN HE REFUSED TO FILE ANY PRETRIAL MOTIONS AS APPELLANT HAD REQUESTED AND FAILED TO INVESTIGATE AVENUES OF DEFENSE THAT WOULD HAVE ...