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State v. Smith

January 9, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MALIK R. SMITH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-04-0824.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 17, 2008

Before Judges Fisher and Baxter.

Defendant, Malik R. Smith, appeals from his May 17, 2006 conviction following a trial by jury on charges of first-degree robbery, N.J.S.A. 2C:15-1 (counts two and three); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a) (count five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count seven); and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1) (count eight).*fn1

The record reveals that in the early morning hours of December 24, 2002, while Craig Packman, the bartender of the Maritime Tavern in Atlantic City, was speaking with a friend toward the rear of the building, two masked men burst into the bar. One of the two, later identified as defendant, pulled a gun from his pocket and waved it in the air while announcing, "this is a f---ing holdup. Put your f---ing money on the bar." Packman, armed with his own handgun, drew it. Seeing Packman's gun, defendant fired one or two shots at Packman who was able to return fire before collapsing. Packman died shortly thereafter. One of the shots fired by Packman struck defendant's accomplice, Gary Sayers, who died a few hours later. Trial testimony established that co-defendant Heleena Hendricks had entered the bar before defendant and Moore to find out how many people were inside.

Approximately seven hours after Packman's murder, police knocked on the apartment door of Ivy Moore, defendant's girlfriend. She awoke defendant, who told her not to open the door. After first trying to hide his gun inside a television, defendant disassembled the weapon, putting one part into a tub of butter in Moore's refrigerator and a second part into a box of hamburgers in the freezer. Defendant and Moore managed to slip away from police by sliding through an opening in a closet floor that led to "open passageways" located beneath several adjacent houses. Prior to trial, Moore entered a negotiated plea of guilty to second-degree conspiracy to commit robbery in which she agreed to testify on behalf of the State at trial.

Following defendant's conviction, and after all appropriate mergers, defendant was sentenced to a sixty-year term of imprisonment on count four, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2. On counts seven and eight, the judge imposed, respectively, consecutive terms of five years and eighteen-months of imprisonment, consecutive to the sentence on count four. The aggregate sentence was sixty-six and one-half years of imprisonment. Appropriate fines and penalties were imposed.

Defendant appealed, raising the following issues:

I. THE TRIAL JUDGE FAILED TO TAKE INTO CONSIDERATION THE REAL TIME CONSEQUENCES OF THE NO EARLY RELEASE ACT

II. THIS MATTER SHOULD BE REMANDED FOR RECONSIDERATION AND RESENTENCING BECAUSE THE TRIAL JUDGE ASSUMED AGGRAVATING FACTORS THAT WERE NOT SUPPORTED BY THE RECORD

III. THE COURT RUSHED THE JURY TO RENDER A VERDICT AND THE POSSIBILITY OF WEEKEND DELIBERATIONS WAS COERSIVE THEREFORE DEFENDANT SHOULD BE GRANTED A NEW TRIAL.

We reject defendant's claim that the judge's non-committal response to a juror's inquiry about the possibility of weekend deliberations "coerced" a guilty verdict. We likewise reject defendant's contention that the sentence imposed resulted from aggravating factors that are not ...


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