On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-05-1628 and 06-05-1629.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Waugh.
Defendant, Naim Jones, was charged in separate indictments with (1) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39-3f,*fn1 and (2) second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. A bifurcated trial occurred, at the conclusion of which a jury found him guilty on all counts. Defendant was given an extended-term sentence of ten years, with five years of parole ineligibility on the second-degree conviction, and to lesser concurrent sentences on the remainder. He has appealed.
On appeal, defendant raises the following arguments for our consideration:
The trial court erred in denying Appellant's motion to dismiss the indictment or in the alternative to provide a spoliation of evidence charge. (Raised below.)
The trial court's assistance of the State during its direct examination of the State's witness impermissibly merged the prosecutorial function with the judicial function. (Not raised below.)
The State's introduction of the Appellant's certified judgment of conviction was in error.
A. The State's introduction of the Appellant's certified judgment of conviction violated Appellant's right to confrontation, U.S. Const. Amend. 6 and N.J. Const., Art. 1, Para. 10. (Not raised below.)
B. The State's introduction of the Appellant's certified judgment of conviction violated the business records exception to the hearsay rule, N.J.R.E. 803(c)(6). (Not raised below.)
The State's improper summation qualifies as Prosecutorial misconduct and substantially prejudiced Appellant's fundamental right to have a jury fairly evaluate the merits of his defense. (Not raised below.)
Trial Counsel's performance constituted ineffective assistance of counsel. (Not raised below.)
The facts of the matter, as set forth in the trial record, can be summarized as follows: At shortly after 9:00 a.m. on February 24, 2006, three plainclothes narcotics Newark police officers were patrolling in an unmarked car in the vicinity of Irvine Turner Boulevard, a high-crime neighborhood generating frequent complaints of drug-related activity. As the officers pulled into a driveway leading to the rear of the Grace West housing complex, one of the officers, Michael Grainger, noticed two males standing on steps leading to a walkway through the complex with currency in their hands. One wore a blue jacket; the other, a black hoodie. The latter was later identified as defendant. Another male, who stood next to them, handed currency to the man in the blue jacket in exchange for an object, and then walked off. At this point, Officer Grainger made eye conduct with defendant and indicated that he wished to purchase two vials of cocaine. Defendant waived Grainger out of his vehicle but, as another officer exited the car, one of the men yelled "five-oh" to indicate the presence of police. The two men fled, chased by the police officers, with the man in the blue jacket in the lead, defendant following, and officers Grainger and West running after them, side-by-side.
The chase led the men across Irvine Turner Boulevard, through the abandoned New Horizon Gardens housing complex, and into the Felix Fuld housing complex. Shortly after the chase began, defendant threw down a Glock nine millimeter handgun, which was retrieved by Grainger, who then resumed the chase at a distance somewhat behind Officer West.
As the two men reached the Felix Fuld complex, the man in the blue jacket, identified as "Twin" by an independent witness, Loretta Alston, a complex resident, split off from defendant, threw his blue jacket under a car, and disappeared. He was never apprehended. At the time of defendant's ...