On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Graves, Sabatino and Harris.
In February 2006, a Union County grand jury charged defendant Jerry Anthony Council with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); third-degree unlawful possession of a weapon (a baseball bat and/or bottles and/or bricks), N.J.S.A. 2C:39-4(d) (count four); and fourth-degree unlawful possession of a weapon (the same items under circumstances not manifestly appropriate), N.J.S.A. 2C:39-5(d) (count five). Co-defendant Steven Arrington was charged on each count with the same offenses as defendant. Prior to trial, count one (attempted murder) and count three (robbery) were dismissed.
Pursuant to a negotiated plea agreement,*fn1 co-defendant Arrington agreed to testify for the State and defendant stood trial alone. Following a five-day trial, a jury acquitted defendant of second-degree aggravated assault (causing serious bodily injury or attempting to cause serious bodily injury), and third-degree possession of a weapon for an unlawful purpose, but he was convicted of a lesser included offense of third-degree aggravated assault (causing significant bodily injury or attempting to cause significant bodily injury), N.J.S.A. 2C:12-1(b)(2) (count two), and fourth-degree unlawful possession of a weapon (count five). At sentencing on April 20, 2007, the trial court granted the State's motion to sentence defendant to a discretionary extended term, pursuant to N.J.S.A. 2C:44-3(a). After noting that defendant had "pummeled" the fifty-nine-year-old victim "senselessly for no purpose" with a baseball bat; and finding that aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), clearly and substantially outweighed "the nonexistent mitigating factors"; the court merged count five with count two and sentenced defendant to an eight-year extended term of imprisonment with a three-year period of parole ineligibility.
On appeal, defendant presents the following arguments:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REQUIRING THE JURY TO CONTINUE DELIBERATIONS DESPITE THE JURY'S INDICATION IT WAS DEADLOCKED. (NOT RAISED BELOW).
THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF THIRD DEGREE AGGRAVATED ASSAULT WAS INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE. (NOT RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING TO IMPOSE A DISCRETIONARY EXTENDED TERM ON COUNT II, WARRANTING A REMAND TO IMPOSE A SENTENCE COMMENSURATE WITH A THIRD DEGREE OFFENSE.
IN THE EVENT THE TRIAL COURT'S DECISION TO IMPOSE A DISCRETIONARY EXTENDED TERM ON COUNT II WAS PROPER, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V.
PIERCE SINCE THE COURT DID NOT FOLLOW THE PIERCE GUIDELINES REGARDING THE APPLICABLE EXTENDED TERM RANGE FOR A THIRD DEGREE OFFENSE.
IN THE EVENT THE DEFENDANT IS NOT ENTITLED TO A REMAND PURSUANT TO STATE V. PIERCE, THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Based on our examination of the record, the briefs, and the applicable law, we have concluded that defendant's arguments pertaining to his convictions are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We remand, however, ...