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State v. West

July 21, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MITCHELL WEST, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-06-0939.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2009

Before Judges Payne and Waugh.

Defendant, Mitchell West, convicted by a jury of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, appeals from his conviction and from his extended-term sentence of thirty years of imprisonment, subject to the eighty-five percent parole ineligibility period specified in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, defendant raises the following issues:

POINT I.

THE PROSECUTOR'S REFERENCES TO DEFENDANT'S CHARACTER DURING CLOSING ARGUMENT WERE IMPROPER AND THE MISCONDUCT REQUIRES THAT A NEW TRIAL BE ORDERED.

POINT II.

THE IMPROPER RULING ALLOWING A STATEMENT MADE BY DEFENDANT WEEKS AFTER THE SHOOTING OF RASHON PONDER INDICATING THAT THERE HAD BEEN TROUBLE BETWEEN THEM IMPROPERLY HAMPERED DEFENSE COUNSEL'S CROSS EXAMINATION OF AN INVESTIGATING OFFICER.

POINT III.

THE 30 YEAR MANDATORY EXTENDED TERM IMPOSED ON DEFENDANT IS MANIFESTLY EXCESSIVE AND MUST BE REDUCED.

In a pro se supplemental brief, defendant raises the following additional issues:

POINT I.

THE TRIAL COURT COMMITTED PLAIN ERROR THEREBY DEPRIVING DEFENDANT OF DUE PROCESS WHEN IT FAILED TO CHARGE AGGRAVATED ASSAULT AS A LESSER INCLUDED OFFENSE OF ATTEMPTED MURDER. (Not Raised Below)

POINT II.

THE MANDATORY GRAVES ACT EXTENDED TERM IMPOSED FOR ATTEMPTED MURDER VIOLATES DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS.

Following our consideration of defendant's legal arguments in light of the record and applicable legal precedent, we affirm his conviction and, as the result of ...


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