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State v. Derry

September 3, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL DERRY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-07-01275.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 28, 2009

Before Judges Collester and Graves.

Following a jury trial, defendant Michael Derry was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two and three); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count four); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count five); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count six); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count seven); and second-degree unlawful possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight). In a second trial before the same jury,*fn1 defendant was convicted of second-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7(b)(1).

Prior to sentencing, defendant filed a motion for a new trial based upon the State's failure to disclose that Ruben Marrero, the victim, who had been robbed, beaten, and then shot, had a fourth-degree hindering apprehension charge pending against him when he testified. The trial court found, however, that the State's "proofs against Mr. Derry were extremely strong," and the court correctly concluded that the State's inadvertent failure to disclose the pending charge against Marrero was harmless beyond a reasonable doubt.

At defendant's sentencing hearing on August 30, 2007, the court imposed two concurrent eighteen-year prison terms subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the serious-bodily-injury robbery conviction (count two), and the armed robbery conviction (count three).*fn2 On count one, conspiracy to commit robbery, defendant was sentenced to a nine-year prison term concurrent with counts two and three.*fn3 On the second-degree aggravated assault conviction (count four), the court imposed a consecutive nine-year term under NERA because the shooting was "a separate and distinct evil that was totally unnecessary." On the two other aggravated assault convictions (counts five and six), defendant received concurrent sentences. However, the State concedes that the third-degree and fourth-degree aggravated assault convictions (counts five and six), merge into count four "because those three charges stemmed from one physical act: the shooting of Marrero." The court imposed a concurrent five-year term on count seven, and count eight was merged into count three.

On defendant's conviction for second-degree possession of a handgun by a previously convicted person, the court imposed a consecutive nine-year prison term with a mandatory five-year period of parole ineligibility pursuant to N.J.S.A. 2C:39-7(b). Thus, defendant received an aggregate sentence of thirty-six years in prison, with twenty-seven years subject to NERA, and an additional five-year period of parole ineligibility for second-degree possession of a handgun by a previously convicted person.

On appeal, defendant argues:

POINT I

A NEW TRIAL IS WARRANTED BECAUSE THE STATE FAILED TO DISCLOSE THAT THE COMPLAINANT, THE PRIMARY STATE WITNESS AGAINST DEFENDANT, HAD A PENDING CRIMINAL CHARGE THAT WAS DISMISSED SHORTLY AFTER HE TESTIFIED AGAINST DEFENDANT IN THIS CASE.

POINT II

THE TRIAL COURT ERRED IN CHARGING ACCOMPLICE LIABILITY OVER DEFENDANT'S OBJECTION.

POINT III

THE TRIAL COURT SHOULD HAVE GIVEN A SPECIFIC UNANIMITY CHARGE (PLAIN ERROR).

POINT IV

DEFENDANT'S RIGHT TO A FAIR JURY TRIAL WAS NOT PRESERVED BECAUSE ONE JUROR WAS SLEEPING DURING DEFENDANT'S CROSS-EXAMINATION OF THE STATE'S PRIMARY WITNESS, AND THE TRIAL COURT CONDUCTED NO INQUIRY INTO HOW MUCH TESTIMONY THE JUROR HAD MISSED (PLAIN ERROR).

POINT V

THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL.

POINT VI

DEFENDANT'S SENTENCE IS EXCESSIVE.

After considering these arguments in light of the record, we are satisfied the trial court correctly rejected defendant's motion for a new trial, and we affirm that determination substantially for the reasons stated by the court in its oral decision on August 30, 2007. We also conclude that defendant's sentence is not excessive, and defendant's arguments in Points II, III, and V are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Further proceedings are necessary, however, to address defendant's claim in Point IV that one of the jurors was sleeping during the trial, and there is also the need for the entry of an amended judgment of conviction merging counts one and two into count three and merging counts five and six into count four.

On the night of May 11, 2003, Ruben Marrero drove his red Honda to Tracee Taylor's house on Rhode Island Avenue in Atlantic City. It was Mother's Day, and Taylor, with whom Marrero had been romantically involved, was having a small party. After Marrero parked his car, he walked up to Taylor's front door and defendant Michael Derry answered the door. Marrero did not know defendant by name, but recognized him from seeing "him around the city." Once inside, Marrero saw Ivan Hall, an old friend that he had not seen for several years, and the two spoke for about fifteen minutes.

Kamal Sears, who Marrero knew through school, was also at the party. Marrero thought that Sears and defendant were somehow related because they were often together and there was a "little resemblance."

After a short while, Marrero left the party. Marrero testified that Taylor told him to leave, and she also told him she would call him "as soon as her company had left." While walking to Marrero's car, Taylor made some ...


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