On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-11-3604.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Espinosa.
In a five-count indictment, defendant Javier Garcia was charged with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and fourth-degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3(f) (count five). Defendant's jury trial began on September 27, 2005, and concluded on October 6, 2005. The jury acquitted defendant of attempted murder, but he was convicted on the remaining counts. At sentencing, the court merged count four into count two, and defendant was sentenced to a nine-year prison term on count two, subject to a mandatory period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. On count three, defendant was sentenced to a concurrent five-year term, and on count five he received a concurrent eighteen-month term.
On appeal, defendant presents the following arguments:
THE TRIAL COURT'S DENIAL OF GARCIA'S MOTIONS TO DISMISS THE INDICTMENTS DENIED GARCIA'S FEDERAL AND STATE RIGHTS TO DUE PROCESS.
THE TRIAL COURT FAILED TO ADEQUATELY ANSWER THE JURY'S QUESTION WHEN IT REFUSED TO RECHARGE SELF-DEFENSE OR OTHERWISE PROVIDE AN ANSWER THAT WAS CONNECTED TO THE FACTS OF THIS CASE OR THE DEFENSE PROFFERED.
FAILURE TO INSTRUCT THE JURY AS REQUIRED BY STATE V. HAMPTON AND N.J.R.E. 104(c) MANDATES REVERSAL. (NOT RAISED BELOW)
THE TRIAL COURT'S FAILURE TO SANITIZE GARCIA'S CONVICTIONS VIOLATED GARCIA'S FEDERAL AND STATE RIGHTS AND REQUIRES REVERSAL.
THE TRIAL COURT'S IMPOSITION OF NINE (9) YEARS IMPRISONMENT SUBJECT TO THE NO EARLY RELEASE ACT WAS IMPROPERLY DETERMINED, EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.
We conclude from our review of the record and the applicable law that these arguments are without merit and require only the following discussion in a written opinion. R. 2:11-3(e)(2).
During defendant's trial, Raphael Lugo (Lugo) testified that on Saturday, July 26, 2003, the day he was shot, he was driving on Oraton Street in the City of Newark, at approximately 10:00 a.m., when defendant, who was driving behind him, flashed his lights and signaled for Lugo "to pull over." Lugo knew defendant because they lived in the same building. According to Lugo, the two men and their wives did not socialize, but Lugo denied having any prior problems with defendant. Lugo thought there might be something that defendant wanted to tell him, so Lugo pulled over.
After defendant exited his vehicle, Lugo asked what was wrong, and defendant stated Lugo had "disrespected" him by sleeping with his wife. Lugo told defendant that he never slept with defendant's wife. Because defendant did not believe him and defendant was angry, Lugo decided it was best to leave. As Lugo started to return to his car, defendant drew a gun from his waist and fired at Lugo. When defendant realized he had missed, he tried to fire a second time, but the gun jammed.
Lugo testified that he was hit in the head with the gun as he tried to tackle defendant and was knocked to the ground. Lugo also testified as follows:
A: Javier got on top and [was] trying to unjam the gun and then I was trying to block my face. [I was] [s]cared to get shot and then he shot me in the face.
Q: When you fell to the ground how did you fall?
Q: Laying on your back on the ground?
Q: And how did Javier get on top of you?
A: With his knees toward me like trying to ...