On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-05-1087A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 15, 2009
Before Judges Gilroy and Simonelli.
On May 10, 2007, an Atlantic County Grand Jury charged defendant in a single count indictment with second-degree robbery, N.J.S.A. 2C:15-1. Tried to a jury, defendant was convicted as charged. On June 20, 2008, after determining that mitigating sentencing factors, N.J.S.A. 2C:44-1b(7), (9) and (10), substantially outweighed aggravating sentencing factors, N.J.S.A. 2C:44-1a(9) and (12), the court sentenced defendant to a term appropriate for a crime one degree lower, that is, the court sentenced defendant to a four-year term of imprisonment, subject to an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed all appropriate fines and penalties.
On appeal, defendant argues:
THE TRIAL COURT SHOULD HAVE, SUA SPONTE, CHARGED THE JURY WITH THE LESSER-INCLUDED OFFENSES OF THIRD AND FOURTH[-]DEGREE ASSAULT, BECAUSE THE FACTS PROVIDED A CLEAR AND RATIONAL BASIS FOR THESE CHARGES AND DISMISSAL OF THE ROBBERY CHARGE. [(NOT RAISED BELOW).]
THE PROSECUTOR MISREPRESENTED THE LAW ON INTOXICATION IN HIS SUMMATION, THEREBY CONFUSING THE JURY, PREJUDICING DEFENDANT AND NECESSITATING A NEW TRIAL. [(NOT RAISED BELOW).]
THE PROSECUTOR'S VIDEOTAPE [R]EPLAY OF INFLAMMATORY TRIAL TESTIMONY - WITHOUT NOTICE TO COUNSEL, AN EVIDENTIARY HEARING OR A LIMITING INSTRUCTION - PREJUDICED DEFENDANT AND ENTITLES HIM TO A RETRIAL.
DURING VOIR DIRE, THE JUDGE'S DISCUSSION OF THE LAW REGARDING EVALUATION OF THE STATE'S EVIDENCE CONFUSED THE MEMBERS OF THE JURY POOL, INTERFERED WITH THEIR PROPER CONSIDERATION OF THE STATE'S ...