On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 06-06-1717-I.
The opinion of the court was delivered by: Wefing, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2009
Before Judges Wefing, Grall and LeWinn.*fn1
Tried to a jury, defendant was convicted of conspiracy to commit carjacking, N.J.S.A. 2C:5-2; carjacking, N.J.S.A. 2C:15-2; robbery while armed, N.J.S.A. 2C:15-1; receiving stolen property, N.J.S.A. 2C:20-7; possession of a prohibited weapon, a sawed-off shotgun, N.J.S.A. 2C:39-3(b); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). He was found not guilty of eluding law enforcement. N.J.S.A. 2C:29-2(b). When defendant appeared before the trial court for sentencing, the court merged defendant's conviction for conspiracy into the conviction for carjacking. It also merged the conviction for possession of a weapon for an unlawful purpose into the conviction for robbery. It sentenced defendant to twenty years in prison for carjacking, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant's remaining sentences were concurrent: twenty years subject to NERA for robbery while armed, five years for receiving stolen property and five years for possession of a prohibited weapon. Defendant has appealed his conviction and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant's convictions were based upon an incident that occurred shortly after 10:00 p.m. on the evening of December 16, 2005. Joseph Wright went to the home of a friend to play some poker. He left to drive home after he lost his money but agreed to drop off another friend downtown. After doing so, he noticed an ATM machine across the street; he parked his car and walked across the street to withdraw some cash. He withdrew $200 and put the money (which the machine had counted out in twenty-dollar bills) into his wallet and then went to a nearby restaurant to purchase some food to take with him. When he returned to his car, he saw that another car had parked directly in front of his vehicle. This car was so close to the front of Wright's car that he could not maneuver his own car out of his parking spot because Wright's car could not go into reverse. Wright testified that this car was red and that its rear window was missing, with the opening covered by plastic tape. The driver's door was open, and an individual was sitting in the driver's seat with his foot hanging out.
Wright asked the driver to move his car forward so Wright could pull out and leave but received no response. He became conscious of someone walking up behind him. He turned and saw another man standing there, holding "something on his sleeve," which turned out to be a sawed-off shotgun. The person pointed the gun at Wright's chest and demanded that Wright hand over what he had. Wright dropped his money, car keys and cell phone onto the ground. The man picked up everything Wright had dropped, got into Wright's car and both vehicles drove away. Wright went to a nearby phone and called the police and reported what had happened.
Later, while Wright was still providing information to the police about the incident, the police received a report of an automobile accident involving a red car. They took Wright to the scene, and he identified the car as the one that had parked so as to block his vehicle from leaving. Wright gave his cell phone number to one of the officers who had accompanied him to the scene. That officer dialed the number, and a cell phone in the red car began to ring. Defendant was seated in the rear of a nearby police car, and Wright identified him as the person who had stolen his car. Wright also identified defendant in the courtroom. A search of the car turned up a sawed-off shotgun. Defendant had $184 in his possession, comprised of $160 in twenty-dollar bills, fifteen dollars in five-dollar bills and nine one-dollar bills.
On appeal, defendant raises the following contentions:
POINT I DEFENDANT WAS DENIED HIS RIGHT UNDER THE CONFRONTATION CLAUSE "TO IMPEACH [THE STATE'S PRIMARY] WITNESS WITH HIS CRIMINAL RECORD." VASQUEZ V. JONES, 496 F. 3D 564, 571 (6TH CIR. 2007). ADDITIONALLY, THE JUDGE ABUSED HIS DISCRETION BECAUSE "THE STATE WOULD NOT HAVE SUFFERED UNDUE PREJUDICE SUFFICIENT TO OUTWEIGH THE PROBATIVE VALUE OF THE PRIOR CONVICTION" STATE V. BALTHROP, 92 N.J. 542, 546 (1983).
U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, ¶ 10.
POINT II THE SENTENCE FOR THIS YOUTHFUL DEFENDANT WAS EXCESSIVE AND A REMAND IS REQUIRED BECAUSE THE JUDGE FAILED TO APPLY THE APPROPRIATE STANDARDS UNDER STATE V. ZADOYAN, 290 N.J. SUPER. 280 (APP. DIV. 1996). U.S. Const. Amend. VI, XIV; N.J. Const. Art I, ¶¶ 1, 9, 10.
Prior to Wright's taking the stand, the prosecution sought a ruling barring defendant's attorney from raising in her cross-examination of Wright the fact that he had been convicted of third-degree aggravated assault in 1993. After hearing argument from the attorneys, the trial court agreed with the prosecution and ruled that Wright could not be ...