On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 06-12-3861.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
Defendant Eugene Thomas appeals his conviction following a jury trial and the sentence imposed for third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b) (count four) and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1) (count five). Defendant had been acquitted on the first three counts of the indictment, charging armed robbery, and the court overturned his conviction for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six), after a motion for judgment notwithstanding the verdict.
On appeal defendant argues:
TRIAL COURT ERRED IN EXCLUDING DEFENDANT'S CHARACTER WITNESSES FROM TESTIFYING ON HIS BEHALF.
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE WHETHER ARREST OR INCIDENT REPORTS FROM THE EAST ORANGE POLICE DEPARTMENT EXI[S]TED.
THE SENTENCING COURT ERRED IN IMPOSING AN EXTENDED TERM ON DEFENDANT BASED UPON CHARGES OF WHICH HE HAD BEEN ACQUITTED AT TRIAL.
THE SENTENCING COURT ERRED IN IMPOSING TWO EXTENDED TERMS ON DEFENDANT.
THE SENTENCING COURT ERRED IN IMPOSING AN EXCESSIVE SENTENCE.
The State requests leave to file a cross-appeal out of time, challenging the entry of an acquittal on count six.
Following our review of these arguments in light of the record and applicable law, we affirm defendant's convictions, but reverse and remand for re-sentencing in light of the court's imposition of concurrent extended terms, in contravention of N.J.S.A. 2C:44-5(a)(2). Finally, we deny the State's request for leave to file a cross-appeal.
The facts are taken from the trial record. On October 17, 2006, Nathaniel Wright was at home in his apartment in Newark along with his girlfriend Sabrina a/k/a "Sebrina" Boone, his roommate Ramon Matthews, and Matthews's girlfriend. Nickie Shenik, a friend of Matthews whom Wright also knew from the neighborhood, stopped by the apartment accompanied by defendant. She produced some of defendant's jewelry and asked if she could leave it with Wright as collateral for a thirty-dollar loan. Wright was willing to loan Shenik the money and agreed to hold the offered collateral. Shenik and defendant left the apartment, and Wright placed the jewelry in a bedroom drawer.
The next morning, defendant returned to Wright's apartment. He first spoke to Wright's brother, David, who lived in the apartment below. David took defendant to Wright's door, where Wright greeted them. Defendant then went to his "red jeep or truck" to retrieve a backpack and returned to speak with Wright and asked him whether he was interested in purchasing a camcorder; Wright declined. Defendant then forced his way into the residence, insisting he had something in the backpack to show Wright.
Wright assumed defendant wanted to collect the jewelry left as collateral, so he turned his back on defendant, attending to food cooking in a microwave. Defendant withdrew a sawed-off, twelve gauge, double-barrel shotgun from his backpack, placed it against the back of Wright's neck and announced "[y]ou know what it is." Wright offered defendant the few dollars he had in his pocket, after which defendant removed the gun from his neck.
Defendant forced Wright and Matthews into a bedroom where Boone was sleeping. Defendant forced the men to undress, emptied the bedroom drawers, and demanded money and jewelry. Defendant returned the gun to his backpack and exited the apartment. Apparently, Shenik and Matthews' girlfriend were asleep in a separate bedroom and were not disturbed by the events.
After defendant left, Wright called 9-1-1. Newark Police Department Detective Frances Soto was dispatched to the residence. After brief interviews, Soto had Wright and Boone transported to police headquarters to review photo arrays. Both identified defendant as the individual who robbed them. David also ...