On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-02-0114.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, C.L. Miniman and King.
Defendant was convicted of attempted murder in the first degree and other weapons charges after the jury found him guilty of attacking a fellow drug dealer in an attempt to collect a money debt. Defendant bases his appeal on inadequate jury instructions and erroneous sentencing by the judge. We affirm defendant's conviction because we find no error. We remand for resentencing.
Defendant Jermaine Jackson and co-defendants Todd Clanton and Randy Johnson were charged by Passaic County Indictment Number 01-02-0114 with first-degree attempted murder, N.J.S.A. 2C:11-3 (Count One); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Count Two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Three); and fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d).
In accordance with a plea agreement, co-defendant Johnson pled guilty to attempted murder before trial and received a fifteen-year sentence, to which the No Early Release Act, N.J.S.A. 2C:43-7.2(d)(1), was applied. Defendant and co-defendant Clanton went to trial jointly before a jury between the dates of May 6 and May 12, 2002. Both were found guilty of attempted murder and the weapons charges.
Defendant and co-defendant Clanton were sentenced on March 14, 2003. Clanton received an aggregate sixteen-year sentence with the 85% parole disqualifier pursuant to the No Early Release Act. Defendant was sentenced to an extended term of thirty-six years with a mandatory minimum of seventeen years, and ordered to pay additional nominal fines.
Co-defendant Clanton appealed, and we affirmed the conviction in November 2004. This court entertained a second appeal from Clanton after a denial for post-conviction relief, and on August 4, 2008, affirmed the denial of that petition.
Defendant filed a notice of appeal on May 19, 2003 which was dismissed for lack of prosecution in 2004. The appeal was reinstated on January 10, 2008. This current appeal relates only to the conviction of appellant Jermaine Jackson.
Maurice Giles (Giles), the victim of the attempted murder, sold crack cocaine together with defendant and co-defendants. Giles would receive bags of crack from co-defendant Johnson or Clanton, which he would sell for ten dollars each. Giles kept twenty-five dollars for every one-hundred dollars worth he sold. Defendant's primary role was to collect the money from Giles and other sellers.
In February 1999, Giles was arrested for cocaine possession and placed on probation. He was in the county jail from February 2000 through May 19, 2000 for a violation of probation. Prior to incarceration, defendant and the co-defendants accused Giles of owing money. This led to multiple encounters where threats were made. For example, defendant approached Giles and stated sternly that he "better get him his f------ money . . . " and co-defendant Clanton "grabbed [Giles's] face and said I want my f------ money, I'm not f------ playing with you."
Giles testified that on the same day he was released from jail, May 19, 2000, he encountered co-defendant Johnson who demanded money, stating "you better give me my f------ money, man, I'm not playing with you." Giles did not have the money to pay co-defendant Johnson.
Three days later, on May 22, 2000, Giles was walking along Pearl Street in Paterson at around 10:25 p.m. with his cousin, Derrick Myles, and friend, Kareem Boyd, after the three had been drinking and smoking marijuana. All of a sudden, Myles began ...