On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-08-0930.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Payne and Waugh.
Defendant, charged with murder, was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; third-degree hindering apprehension, N.J.S.A. 2C:29-3b; and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7.
Defendant was sentenced to an extended term of fifty years on the aggravated manslaughter conviction with a twenty-five and one-half year parole disqualifier imposed pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a consecutive term of five years for unlawful possession of a weapon. A concurrent sentence of ten years with a five-year parole disqualifier was imposed on the conviction for possession of a weapon by a convicted felon, and a concurrent five-year sentence was imposed for hindering apprehension. The conviction for possession of a weapon for an unlawful purpose was merged with the aggravated manslaughter conviction. At sentencing, the trial judge cited as applicable aggravating factors 3 (the risk of reoffense), 6 (the extent of defendant's prior record), and 9 (the need for deterrence). N.J.S.A. 2C:44-1a(3), (6) and (9). Sentencing occurred one week after issuance of the Supreme Court's decision in State v. Pierce, 188 N.J. 155 (2006).
However, the procedures mandated in that decision were not followed. On appeal, the State agrees that resentencing is appropriate pursuant to Pierce's dictates, and we order it to occur.
Defendant has appealed, raising the following arguments through counsel:
THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION FOR RECUSAL AS THERE WAS A SUFFICIENT SHOWING MADE THAT THE JUDGE WAS NOT IMPARTIAL TOWARD THE DEFENDANT.
THE TRIAL JUDGE ERRED IN CHARGING FLIGHT TO THE JURY AS THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE INFERENCE THAT THE DEFENDANT'S ABSENCE WAS AS A RESULT OF CONSCIOUSNESS OF GUILT.
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
A SENTENCING REMAND IS NECESSARY AS THE JUDGE'S IMPOSITION OF THIS DISCRETIONARY EXTENDED TERM SENTENCE VIOLATED THE HOLDING OF STATE V. PIERCE, 188 N.J. 155 (2006).
Defendant has presented the following additional arguments pro se.
THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT ENGAGED IN AN EX PARTE OFF-THE-RECORD COMMUNICATION WITH A DELIBERATING JURY. (NOT RAISED BELOW.)
THE TRIAL JUDGE ERRED WHEN IT FAILED TO DECLARE A MISTRIAL BASED ON THE PREJUDICIAL INFORMATION ...