On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2017.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Skillman and Gilroy.
On June 26, 2006, an Essex County Grand Jury charged defendant Isaiah Kinney and co-defendant Gloria Jones with first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one);*fn1 second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (count three); fourth-degree unlawful possession of a weapon (a blunt object), N.J.S.A. 2C:39-5d (count four); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five). The Grand Jury also charged Jones with second-degree eluding, N.J.S.A. 2C:29-2b (count six).
Following indictment, Jones entered into a plea agreement with the State, pleading guilty to conspiracy to commit aggravated assault and second-degree aggravated assault in exchange for the State recommending that she be sentenced to an eight-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and dismissal of the remaining charges. A condition of the plea agreement required Jones to testify truthfully at defendant's trial.
A jury convicted defendant of second-degree conspiracy to commit aggravated assault as a lesser-included offense on count one and of second-degree aggravated assault on count two. The jury acquitted defendant of the remaining charges. On October 15, 2007, the court denied defendant's motion for a new trial and granted the State's motion to sentence defendant to a discretionary extended term, pursuant to N.J.S.A. 2C:44-3a. After finding aggravating sentencing factors, N.J.S.A. 2C:44-1a(1), (3), (6), and (9), and no mitigating sentencing factors, N.J.S.A. 2C:44-1b, the court sentenced defendant on count two to a twenty-year extended term of imprisonment with an 85% period of parole ineligibility, pursuant to NERA, and to a three-year term of parole supervision upon release. The court merged the conviction on count one with the conviction on count two. The court also imposed all mandatory fines and penalties.
On appeal, defendant argues:
THE COURT ERRED IN FAILING TO CHARGE THE LESSER-INCLUDED OFFENSES OF AGGRAVATED ASSAULT.
A. THE DEFENDANT WAS ENTITLED TO THE LESSER-INCLUDED OFFENSES BECAUSE THE FACTS INDICATED THAT [DEFENDANT] DID NOT SHARE THE SAME INTENT AS [CO-DEFENDANT].
B. THE FAILURE TO CHARGE LESSER-INCLUDED OFFENSES RESULTED IN THIS JURY NOT BEING CLEARLY ADVISED AS TO THE SHARED INTENT REQUIREMENT OF ACCOMPLICE LIABILITY.
THE INSTRUCTION DEALING WITH THE CO-DEFENDANT'S TESTIMONY WAS EVISCERATED WHEN THE COURT STATED THAT HER PENDING SENTENCE DID NOT BEAR ON HER CREDIBILITY. (NOT RAISED BELOW).
THE COURT ERRED IN GIVING THE JURY WRITTEN SECTIONS OF THE INSTRUCTIONS RATHER THAN ANSWERING THEIR QUESTIONS IN PLAIN LANGUAGE. (NOT RAISED BELOW).
THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE TERM OF 20 YEARS WITH A[N] 85% PAROLE BAR UNDER NERA. ...