On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-06-0623.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Simonelli.
A Union County Grand Jury charged defendant Gregory Banks with first-degree knowing and purposeful murder, N.J.S.A. 2C:11- 3a(1), and/or (2) (count one); first-degree kidnapping, N.J.S.A. 2C:13-1b (count two); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count three); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d (count four); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); and fourth-degree contempt, N.J.S.A. 2C:29-9a (count six). Prior to trial, the court dismissed count six. A jury found defendant guilty on all remaining counts.
On November 17, 2006, 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 one to a life 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; on count two to a twenty-five year term of imprisonment with a mandatory twenty-five year period of parole ineligibility, consecutive to the sentence imposed on count one; and on count four to an eighteen-month term of imprisonment, concurrent to the sentence imposed on count one. The court merged the convictions on counts three and five with the conviction on count one, and imposed all appropriate fines and penalties. Accordingly, defendant received an aggregate sentence of life imprisonment with an 85% period of parole ineligibility plus twenty-five years without parole.
On appeal, defendant argues:
THE [EXCLUSION] FOR CAUSE BY THE TRIAL COURT OF THREE POTENTIAL JEWISH JURORS BECAUSE THEY COULD NOT ATTEND TRIAL ON YOM KIPPUR WAS AN IMPERMISSIBLE EXCLUSION OF AN ENTIRE COGNIZABLE CLASS OF JURORS, REQUIRING THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL.
THE OMISSION OF AN INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER REQUIRES THE REVERSAL OF DEFENDANT'S MURDER, KIDNAPPING AND FELONY-MURDER CONVICTIONS. (NOT RAISED BELOW).
THE COURT'S FACT-SPECIFIC INSTRUCTION ON AGGRAVATED [MANSLAUGHTER] WAS MISLEADING AND FORECLOSED THE JURY FROM CONSIDERING OTHER EVIDENCE PERTAINING TO THE RECKLESS FORMS OF MANSLAUGHTER. (NOT RAISED BELOW).
A MAXIMUM LIFETERM OF IMPRISONMENT FOR MURDER, SUBJECT TO THE NERA 85% PAROLE BAR, IMPOSED CONSECUTIVELY TO A 25-YEAR TERM OF IMPRISONMENT FOR KIDNAPPING ...