On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 05-12-2554-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2009
Before Judges Winkelstein and Gilroy.
In December 2005, a Monmouth County grand jury indicted defendant on ten counts. The first five counts pertained to a June 9, 2005, robbery of Gerald Brown, which were tried separately and are the subject of a separate appeal. See State v. Smith, No. A-3982-06 (App. Div. March 26, 2009).
Counts six through ten pertain to a June 10, 2005 robbery of Xiao Chen and are the subject of this appeal. Those counts are as follows: count six, first-degree armed robbery; count seven, third-degree aggravated assault with a deadly weapon, a metal baseball bat; count eight, second-degree aggravated assault; count nine, third-degree possession of a weapon, a metal baseball bat, for an unlawful purpose; and count ten, fourth-degree unlawful possession of a weapon, a metal baseball bat.
The jury convicted defendant of counts six and seven; count eight, amended to third-degree aggravated assault with bodily injury; and counts nine and ten. The court merged counts seven, eight and nine with count six, and sentenced defendant on count six to a term of sixteen years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2., and to a concurrent five-year term on count ten. The court ran these sentences consecutive to the sixteen-year prison term it had imposed after defendant's conviction of first-degree robbery on the severed counts of the indictment. State v. Smith, supra, No. A-3982-06.
On appeal, defendant raises the following issues:
POINT I: THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO CONFRONTATION BY ADMITTING THE HEARSAY STATEMENT OF THE VICTIM IN THE ABSENCE OF ANY OPPORTUNITY FOR CROSS-EXAMINATION. U.S. CONST., AMENDS VI, XIV; N.J. CONST. (1947) ART. 1, PAR. 10.
POINT II: THE CONVICTION WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE, NECESSITATING REVERSAL. U.S. CONST., AMEND XIV; N.J. CONST. (1947), ART 1, PAR. 10 (NOT RAISED BELOW).
POINT III: THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We reject defendant's arguments and affirm.
On June 10, 2005, the victim, Xiao Chen, was a delivery person for the Panda Restaurant in Neptune Township. That evening, defendant and two acquaintances, Eris Nash and her sister, Marlena Nash, were sitting on the Nashes' porch on Winding Ridge Drive in Neptune. Eris Nash ordered food from the Panda Restaurant for delivery to the Nash home.
Before the delivery person arrived, the Nash sisters went into the home, but defendant waited on the porch. When she heard the doorbell ring, Eris "went downstairs to get it. And [she] looked out through the peephole and [saw the deliveryman] get hit. And at that time [she] put the chain on the door and got [her] sister and left . . . through the back door." ...