On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 05-10-2240-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Winkelstein.
An Atlantic County grand jury indicted defendant on October 20, 2005, charging him with third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5b (count one); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count two). Prior to trial, defendant stipulated that he had been convicted of a predicate offense under count two of the indictment. Consequently, the trial court dismissed count one and defendant was tried only as to count two.
On September 13, 2006, the jury convicted defendant of that charge. The court granted the State's motion for an extended term, finding that defendant was eligible as a persistent offender, N.J.S.A. 2C:44-3a, and imposed a fourteen-year prison term, with a seven-year period of parole ineligibility.
On appeal, defendant raises two arguments:
THE PROSECUTOR COMMITTED MISCONDUCT DURING SUMMATION WHEN HE IMPROPERLY COMMENTED ON MR. STUKES' DECISION NOT TO TESTIFY, BOLSTERED THE STATE'S CRITICAL WITNESS'S TESTIMONY AND IMPUGNED MR. STUKES' DEFENSE. MOREOVER, THE JUDGE FAILED TO GIVE THE JURY A CURATIVE INSTRUCTION. U.S. CONST. AMEND XIV; N.J. CONST. ART. 1, ¶ 10.
IMPOSITION OF A 14-YEAR EXTENDED TERM, WITH 7-YEAR PAROLE INELIGIBILITY, WAS NOT JUSTIFIED BY A PROPER BALANCING OF APPLICABLE AGGRAVATING AND MITIGATING FACTORS, AND RESULTED IN A SENTENCE SO MANIFESTLY EXCESSIVE AS TO COMPEL THIS COURT TO REDUCE DEFENDANT'S SENTENCE OR REMAND TO THE TRIAL COURT FOR RESENTENCING.
We reject defendant's arguments and affirm.
The incident that led to defendant's conviction occurred on September 5, 2005, in Atlantic City. In a 9-1-1 call, Tamara Barley reported that she was having an argument with defendant, her boyfriend; during the argument, defendant pushed her. At trial, Barley testified that defendant did not have a gun.
Atlantic City police officers Michael Tracy and Craig Argus responded to her call. As Tracy approached defendant, the officer identified himself, and told defendant that he wanted to speak to him. Defendant responded ...