On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-04-0206.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 27, 2008
Before Judges A.A. Rodríguez and Lihotz.
Tried to a jury, defendant Toby Hudson was found guilty as an accomplice pursuant to N.J.S.A. 2C:2-6 of first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a)(3) (count two); third- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four). The trial court merged count four with count three, and then merged counts three and two with count one. Defendant was sentenced to eleven and one-half years imprisonment on the first-degree robbery conviction, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court ordered applicable penalties and assessments.
Defendant seeks reversal of his conviction or a modification of the imposed sentence, arguing:
DEFENDANT IS ENTITLED TO A JUDGMENT OF ACQUITTAL OF FIRST DEGREE ROBBERY BECAUSE THE STATE DID NOT PRODUCE ANY EVIDENCE THAT THE PAINT BALL MARKERS OR "GUNS" WERE CAPABLE OF CAUSING SERIOUS BODILY INJURY, AND WERE THUS "DEADLY WEAPONS" WITHIN N.J.S.A. 2C:11-1(c). (Not Raised Below). POINT II
THE TRIAL COURT'S INSTRUCTIONS REGARDING THE USE OF THE PLEADING CO-DEFENDANT'S TESTIMONY WERE ERRONEOUS AND HIGHLY PREJUDICIAL AS THEY DID NOT MAKE IT CLEAR THAT THE CO-DEFENDANT'S GUILTY PLEA WAS NOT TO BE USED AS A SUBSTANTIVE EVIDENCE OF DEFENDANT'S GUILTY: THUS, THIS COURT SHOULD REMAND THE CASE FOR A NEW TRIAL ON THE LESSER-INCLUDED OFFENSE OF SECOND DEGREE ROBBERY. (Not Raised Below).
THE PROSECUTOR'S ARGUMENT THAT DEFENDANT DID NOT CALL HIS MOTHER AS A WITNESS BECAUSE HER TESTIMONY WOULD HAVE BEEN UNFAVORABLE TO HIM CONSTITUTED REVERSIBLE MISCONDUCT, AND REQUIRES REMAND FOR A NEW TRIAL ON THE LESSER-INCLUDED OFFENSE OF SECOND DEGREE ROBBERY.
THE INTERESTS OF JUSTICE DEMAND THAT DEFENDANT BE SENTENCED TO A TERM WITHIN THE SECOND DEGREE RANGE[.] IN ADDITION, A PROPER BALANCING OF AGGRAVATING AND MITIGATING FACTORS SHOULD HAVE RESULTED IN A SENTENCE ...