On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 05-12-1564-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically December 11, 2008
Before Judges Winkelstein and Gilroy.
A Middlesex County Grand Jury returned an indictment against defendant, James C. Marlin, and co-defendant, Edwin M. Villegas. The grand jury charged defendant with second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); and third-degree unlawful possession of a weapon, a BB gun, without having obtained a permit, N.J.S.A. 2C:58-4 (count six). In addition, the grand jury charged co-defendant with fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4)(count three), and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count four). On the same day, the grand jury separately indicted defendant, charging him with certain persons not to have possession of a weapon, N.J.S.A. 2C:39-7.
On April 17, 2006, co-defendant pleaded guilty to count two, first-degree armed robbery, and count five, second-degree possession of a weapon for an unlawful purpose. As part of the plea agreement, the State would recommend that he be sentenced as a second-degree offender for the first-degree offense, and receive a seven-year prison term with an eighty-five percent period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Also as part of the plea agreement, co-defendant was to provide "truthful testimony" concerning defendant at trial.
Following a trial from October 24, 2006, to November 3, 2006, a jury convicted defendant of counts one, two and five, and acquitted him of count six and of the single count under the second indictment. Approximately two weeks later, the court sentenced co-defendant as a second-degree offender for first-degree armed robbery, imposing a five-year prison term with an eighty-five percent period of parole ineligibility under NERA, and a concurrent five-year prison term for his conviction for second-degree possession of a weapon for an unlawful purpose. The court dismissed the remaining counts against him.*fn1
On February 2, 2007, immediately after the trial court denied defendant's motion for a new trial, the court sentenced him to an eighteen-year prison term for the first-degree armed robbery conviction,*fn2 and a concurrent ten-year prison term for the second-degree conspiracy conviction, both subject to an eighty-five percent period of parole ineligibility under NERA.
On appeal, defense counsel raises the following legal arguments for our consideration:
DEFENDANT WAS DEPRIVED OF A FAIR GRAND JURY HEARING AND HIS MOTION FOR DISMISSAL OF THE INDICTMENT SHOULD HAVE BEEN GRANTED FOR FAILURE TO PRESENT EXCULPATORY EVIDENCE AND INTRODUCTION OF DEFENDANT'S CRIMINAL HISTORY AT THE GRAND JURY HEARING.
A. The prosecutor wrongfully failed to present exculpatory evidence at the grand jury hearing.
B. Defendant was deprived of a fair grand jury hearing by reference on more than one occasion during testimony that he was on parole and had been arrested for another crime.
POINT II IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 3:18 AND MOTION FOR A NEW TRIAL PURSUANT TO RULE 3:20 SINCE THERE WAS INSUFFICIENT EVIDENCE TO WARRANT A CONVICTION.
POINT III DEFENDANT'S SENTENCES OF EIGHTEEN (18) YEARS FOR ARMED ROBBERY AND TEN (10) YEARS FOR CONSPIRACY TO COMMIT ARMED ROBBERY WAS AN ABUSE OF DISCRETION.
POINT IV DEFENDANT'S SENTENCE WAS INVALID BASED ON THE DISPARITY IN RELATION TO THE CO-DEFENDANT'S SENTENCE.
POINT V THE CONVICTION FOR CONSPIRACY SHOULD HAVE MERGED WITH THE ARMED ROBBERY.*fn3
In defendant's pro se supplemental brief, he raises the following points:
DEFENDANT WAS DENIED DUE PROCESS (U.S.C.A. CONST. AMEND 14) WHEN DEFENDANT FILED A MOTION [FOR] LEAVE TO APPEAL TO THE APPELLATE DIVISION, AND DEFENDANT['S] MOTION WAS DENIED BY THE APPELLATE DIVISION. WITH THE APPELLATE DIVISION SETTING FORTH NO REASONINGS FOR ITS [FINDINGS].
DEFENDANT WAS DEPRIVED A FAIR TRIAL (U.S.C.A. CONST AMEND 6) BY TRIAL COURT['S] FAILURE TO INSTRUCT JURY ON PRIOR INCONSISTENT STATEMENT. AND FAILURE TO PROPERLY INSTRUCT THE JURY ON ACCOMPLICE LIABILITY.
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
TRIAL COURT ERROR BY CROSS-[EXAMINING] THE WITNESSES AT DEFENDANT['S] TRIAL IN AN OVER SUGGESTIVE MANNER.
With the exception of point four of defense counsel's brief, we reject these arguments and affirm defendant's conviction. As to defendant's disparate sentence argument, we remand for the trial court to consider whether defendant's eighteen-year prison term is disparate from that of his co-defendant, who ...