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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 pertain to a June 9, 2005 robbery of Gerald Brown, Jr. The charges were: count one, first-degree armed robbery; count two, third-degree aggravated assault with a deadly weapon, a firearm; count three, third-degree aggravated assault; count four, second-degree possession of a weapon, a firearm, for an unlawful purpose; and count five, third-degree unlawful possession of a weapon.
The trial judge severed counts six through ten, which were related to a June 10, 2005 robbery of Xiao Chen. Those counts were tried separately, and are the subject of a separate appeal, State v. Smith, No. A-0352-07 (App. Div. March 26, 2009).
Counts one through five were tried in November 2006. A jury convicted defendant of all charges. The court merged counts two, three and four into count one, the first-degree robbery conviction, and imposed a sixteen-year prison term with an eighty-five percent period of parole ineligibility pursuant to NERA.*fn1 On count five, unlawful possession of a weapon, the court imposed a concurrent five-year prison term.
On appeal, defendant raises three points:
POINT I: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE INSOMUCH AS THERE WAS INSUFFICIENT EVIDENCE TO ALLOW A JURY TO CONCLUDE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS GUILTY OF CRIMES CHARGED.
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS.
POINT III: DEFENDANT'S SENTENCE WAS UNDULY MANIFESTLY EXCESSIVE.
Defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Consequently, we affirm his conviction and sentence. We add only the following brief comments.
On June 9, 2005, defendant, Brown, and a group of other men were hanging out in a cemetery. There was testimony that Brown and his friends were members of the Bloods, while defendant and his friends were members of the Crips. An argument ensued, and during the argument, Brown was shot twice in the leg. While hospitalized, Brown refused to make a statement to the police. He also misled the police as to where the crime took place, and he told the officer that he was unable to identify the person who shot him.
Several days later, Brown told Detective Brian Fromhold where the shooting occurred. At trial, Brown testified that someone asked for a cigarette, and then put a gun in his face and asked for money. He smacked the gun away, and was then shot in the leg. He admitted at ...