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State v. Simms

March 10, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TOMANGO SIMMS AKA TOMANGO SIMS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-12-2430.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 21, 2008

Before Judges Skillman, Graves and Grall.

In a five-count indictment, defendant Tomango Sims was charged with felony murder, in violation of N.J.S.A. 2C:11- 3(a)(3) (count one); aggravated manslaughter, in violation of N.J.S.A. 2C:11-4 (count two); aggravated arson, in violation of N.J.S.A. 2C:17-1(a) (count three); arson, in violation of N.J.S.A. 2C:17-1(b) (count four); and aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(8) (count five). Following a jury trial, Sims was acquitted of aggravated manslaughter and aggravated arson, but he was found guilty of the lesser-included offenses of reckless manslaughter and arson. The jury also found defendant guilty of the remaining charges, including felony murder for causing the death of Elijah Jenkins, Jr., who was in the building that defendant set on fire. After appropriate mergers, the trial court sentenced defendant to a thirty-year prison term for felony murder with a thirty-year period of parole ineligibility under N.J.S.A. 2C:11-3(b)(1). Defendant received a concurrent five-year term on count five for knowingly or purposely starting a fire which resulted in bodily injury to a fireman.

On appeal, defendant presents the following arguments in a brief filed by counsel:

POINT I

DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL JUDGE'S ERRONEOUS JURY INSTRUCTIONS VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART I, PARS. 1, 9, 10. (Not Raised Below).

POINT II

THE STATE FAILED TO SUSTAIN ITS BURDEN OF PROOF THAT THE DEFENDANT'S WAIVER OF RIGHTS WAS KNOWING AND VOLUNTARY, AND THE TRIAL JUDGE'S FINDINGS WERE INSUFFICIENT TO SUPPORT ITS DECISION. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART I, PARS 1, 9, 10.

POINT III

THE TRIAL JUDGE'S FAILURE TO PROVIDE A PROPER CORROBORATION CHARGE VIOLATED THE DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, PARS. 1, 9, 10. (Not Raised Below).

In addition, defendant presents the following arguments in a pro se supplemental brief:

POINT I

THE PETITIONER-APPELLANT SIMS SUBMIT AS A SUPPLEMENTAL THAT THE TRIAL COURT COMMITTED PLAIN ERROR IN THE JURY CHARGE INSTRUCTIONS ON THE UNDERLYING FELONY OF ARSON ...


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