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State v. Holmes

April 14, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OMAR HOLMES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-10-3299, 06-11-3666 and 06-11-3667.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 22, 2010

Before Judges Lisa and Baxter.

This appeal pertains to defendant's convictions under three separate Essex County indictments, and the sentences that were imposed on all three indictments on the same date. Indictment No. 06-10-3299 contained three counts: (1) third-degree aggravated assault on a police officer,*fn1 N.J.S.A. 2C:12-1b(5)(a); (2) third-degree resisting arrest, N.J.S.A. 2C:29-2a(3); and (3) fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1. Defendant was tried jointly with his co-defendant, Kasim-Simon Hedgespeth.*fn2 The jury acquitted defendant of count one, found him guilty of count two, and, on count three, found him guilty only of the lesser-included offense of disorderly persons obstructing administration of law. Subsequent to the trial, but before sentencing, defendant pled guilty to count one of Indictment No. 06-11-3666, third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. He also pled guilty to the single count in Indictment No. 06-11-3667, second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7b. The offenses in these two indictments arose out of the same incident, which was unrelated to the subject matter implicated in the first indictment we mentioned.

In pleading guilty to the latter two indictments, defendant entered into a plea agreement with the State which provided that defendant would be sentenced to five years imprisonment on Indictment No. 06-11-3666, concurrent to a sentence of ten years imprisonment with a five-year parole disqualifier on Indictment No. 06-11-3667, and that those sentences would be served concurrent with whatever sentence the court would impose on Indictment No. 06-10-3299, and also concurrent to another sentence that defendant was then serving. The plea agreement also provided for dismissal of count two of Indictment No. 06-11-3666 (fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d) and dismissal of another outstanding complaint and another indictment.

Defendant was sentenced on July 10, 2007. The judge imposed the sentence recommended in the plea agreement on the two indictments under which defendant pled guilty. On the indictment under which defendant went to trial, defendant received a sentence of five years imprisonment on count two and six months imprisonment on count three. All sentences were ordered to run concurrently to each other, thus resulting in an aggregate term of ten years imprisonment with a five-year parole disqualifier to be served concurrently with a sentence defendant was already serving. All other outstanding charges were dismissed in accordance with the plea agreement.

Defendant raises two arguments on appeal. The first relates to the trial, and the second relates to the sentences imposed on all three indictments that are the subject of this appeal. More particularly, defendant argues:

POINT ONE

THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S REQUEST FOR AN ADVERSE INFERENCE CHARGE AGAINST THE STATE FOR ITS FAILURE TO CALL AS WITNESSES THE TWO FEMALE POLICE OFFICERS WHO WERE PART OF THE INCIDENT AND FOR DENYING DEFENSE COUNSEL THE OPPORTUNITY TO ARGUE IN HER SUMMATION THAT THE JURY SHOULD DRAW AN ADVERSE INFERENCE AGAINST THE STATE.

POINT TWO

DEFENDANT'S SENTENCE WAS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION.

We reject these arguments ...


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