On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-07-1649.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Skillman and Gilroy.
On July 17, 2007, an Atlantic County Grand Jury charged defendant Christopher Fountain with third-degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count four); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count five). A jury convicted defendant of all charges.
On July 3, 2008, the trial court 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(3), (6), and (9), and no mitigating sentencing factors, N.J.S.A. 2C:44-1b, the court sentenced defendant on count three to a seventeen-year extended term of imprisonment with a 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a three-year period of parole supervision upon release. On count one, the court sentenced defendant to a five-year term of imprisonment, to run consecutive to the sentence imposed on count three. On count five, the court sentenced defendant to an eighteen-month term of imprisonment, with an eighteen-month period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c, concurrent with the sentences imposed on counts one and three. The court merged counts two and four with count three and imposed all appropriate fines and penalties.
On appeal, defendant argues:
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY, AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (NOT RAISED BELOW).
THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHEN IT VOUCHED FOR THE KEY WITNESS'S CREDIBILITY, AND USURPED THE ROLE OF THE JUDGE BY "EXPLAINING" THE ELEMENTS OF THE PRIMARY CRIME CHARGED, DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST., ART. 1, PAR. 10. (NOT RAISED BELOW).
EXPERT BALLISTICS TESTIMONY FINDING THAT THE RECOVERED BULLET RESULTED IN A CONCLUSIVE POSITIVE IDENTIFICATION FAILED TO CONFORM TO SCIENTIFIC STANDARDS, DEPRIVING DEFENDANT OF ...