On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-09-0985.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Rodríguez and Ashrafi.
Defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), other offenses merged therein, and possession of a handgun without a permit. The defendant was sentenced to six years in the custody of the Commissioner of the Department of Corrections, with eighty-five percent thereof to be served before parole eligibility under the No Early Release Act (NERA), for the aggravated assault, and to a concurrent sentence for the permit violation.*fn1 On this appeal defendant argues:
POINT I: THE TRIAL COURT CONDUCTED AN INCOMPLETE AND INACCURATE ANALYSIS OF THE FIFTEEN FACTORS UNDER THE STATE V. GROSS ANALYSIS OF THE FEDERAL RULES [SIC] OF EVIDENCE WHICH SEVERELY PREJUDICED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.
POINT II: THE TRIAL COURT COMMITTED PLAIN ERROR WHEN THE JUDGE INSTRUCTED THE JURY ON A CHARGE OF LESSER INCLUDED OFFENSES, UNDER STATE V. THOMAS, EVEN THOUGH THE DEFENSE COUNSEL AND THE PROSECUTOR DID NOT REQUEST THIS CHARGE; THEREFORE THE JURY CHARGE BIASED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT III: THE TRIAL COURT DEMONSTRATED PREJUDICE TO THE DEFENDANT WITH REMARKS AND AND [SIC] PROCEDURES THROUGH WHICH THE CUMULATIVE EFFECT THROUGHOUT TRIAL VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
POINT IV: THE PROSECUTOR VIOLATED THE DEFENDANT'S RIGHTS WHEN HE DENIGRATED THE VICTIM, WHO WOULD BE COMING FROM JAIL TO TESTIFY AT THE TRIAL THAT THE DEFENDANT WAS NOT INVOLVED IN THE CRIME.
POINT V: THE PROSECUTORIAL MISCONDUCT FROM THE OPENING STATEMENTS THROUGH THE CLOSING ARGUMENTS OF THE JURY TRIAL CREATED A PREJUDICIAL APPROACH WHICH SEVERELY DAMAGED DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.
(A) THE PROSECUTOR MADE DISCRIMINATORY REMARKS AGAINST THE VICTIM, RAUSHON FAULCON, EMPHASIZING HE WAS IN PRISON WHILE TESTIFYING AND THAT FACT WOULD MAKE HIM FEARFUL OF TELLING THE TRUTH WHICH PREJUDICED THE TRIAL, AND INFRINGED ON DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.
(B) PROSECUTOR MADE IMPROPER AND OVERREACHING COMMENTS DURING SUMMATION WHEN THE PROSECUTOR STATED THAT THE DEFENDANT USED THE GUN IN OTHER CRIMES WITH THE CO-DEFENDANT, WHEN NO EVIDENCE WAS PRESENTED TO SUPPORT THESE BIASED STATEMENTS.
POINT VI: DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE ATTORNEY FAILED TO INTERVIEW OR COMMUNICATE WITH WITNESS, PATRICIA JONES, UNTIL THE WITNESS CAME TO COURT TO TESTIFY; THEREBY INFRINGING ON DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT VII: DEFENSE COUNSEL NEGLIGENT THROUGHOUT THE TRIAL BY FAILING TO INVESTIGATE LEADS, OBJECT AT KEY TIMES AND PREPARE FOR ARGUMENTS WHICH NEGATIVELY IMPACTED UPON DEFENDANT'S CONSTITUTIONAL RIGHTS.
POINT VIII: THE TRIAL COURT ERRED IN MAKING PREJUDICIAL COMMENTS AT THE SENTENCING PROCEDURE AND GIVING THE DEFENDANT AN EXCESSIVE SENTENCE, BECAUSE THE FACTS FOUND BY THE JUDGE ARE NOT SUPPORTED IN THE RECORD UNDER THE CORRECT SENTENCING GUIDELINES.
We reject the contentions and affirm the judgment.
The facts, as developed at the trial, reveal the following. On the evening of November 19, 2004, the victim, Rahson Faulcon, and his brother Lucain were riding their bicycles in Plainfield. Faulcon saw a white Chevy Impala pull up next to them.*fn2 He believed there were about five people in the car, although he recognized only two of them, "Sal," who was in the front passenger seat, and "Irv," who was sitting directly behind. Faulcon saw "Sal" roll down the window and shoot at Faulcon and his brother several times. Faulcon was hit once in the lower part of his left leg.
Officers Jeffrey Carrier and Jeffery Plum responded to the reports of a shooting. When the officers arrived at the scene, they observed Faulcon lying on the sidewalk surrounded by a crowd of people, some of whom appeared to be trying to take his money and his boots. Carrier noted that Faulcon "was obviously in pain, lying on the sidewalk," and appeared to be agitated. Both officers noted that Faulcon had a gunshot wound to his "[l]ower left leg." When Officer Plum tried to speak with Faulcon, he did not want to speak, and was "[e]xtremely angry" and "[d]efiant."
While Faulcon received treatment for his injury, Officer Carrier and other officers began to cordon off the crime scene, locate witnesses, and gather evidence. Three shell casings were recovered.
After the medical personnel arrived and placed Faulcon into an ambulance, Officer Plum briefly spoke with Faulcon again. While Faulcon was still angry and upset, he "reluctantly" told Plum that the shooter had been in a white Impala and that he had seen "Irv and Sal" inside the vehicle. Officer Carrier also learned that a white Chevy Impala was involved in the shooting.
A few hours later, at about 2:30 a.m., Carrier spotted a white Impala on Front Street and radioed another patrol car that it could have ...