On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 05-05-0286.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 29, 2009
Before Judges Axelrad, Lihotz and Messano.
Defendant, Tahiem Allah Howell, was convicted by a jury of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), the lesser included offense of attempted murder (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count four)*fn1 . He was also convicted in a bifurcated non-jury trial of the second-degree offense of being a certain person who cannot possess a firearm, N.J.S.A. 2C:39-7b (count six). The court merged the unlawful purpose conviction with the aggravated assault conviction, and sentenced defendant to seven years' imprisonment, with an 85% period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.1. The court also imposed concurrent imprisonment terms of four years for unlawful possession of a weapon and seven years with five years of parole ineligibility for certain persons not to possess firearms. Appropriate fines and penalties were also assessed.
On appeal, defendant challenges both his conviction and sentence, presenting the following arguments for our review:
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT INADMISSIBLE AND PREJUDICIAL TESTIMONY FROM APRIL ROBINSON AND KEISHA JONES UNDER THE GUISE OF N.J.R.E. 803(c)(1). (PARTIALLY RAISED BELOW).
A. THE TESTIMONY ELICITED FROM APRIL ROBINSON REGARDING STATEMENTS ALLEGEDLY MADE BY DANIEL EDROS DID NOT QUALIFY AS PRESENT SENSE IMPRESSIONS PURSUANT TO N.J.R.E. 803(c)(1).
B. SINCE THE TESTIMONY ELICITED FROM KEISHA JONES REFERRED TO STATEMENTS MADE BY SHAROD THOMAS, WHO DID NOT TESTIFY AT TRIAL, THE ADMISSION OF SUCH TESTIMONY VIOLATED THE DEFENDANT'S RIGHT OF CONFRONTATION, RENDERING IT INADMISSIBLE.
THE JURY'S VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IV CHARGING POSSESSION OF A HANDGUN WITHOUT A PERMIT INTO COUNT VI CHARGING POSSESSION OF A HANDGUN BY ...