On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-03-0888 and 06-03-0889.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2009
Before Judges Graves, Sabatino and J. N. Harris.
In a ten-count indictment, an Essex County Grand Jury charged defendant Naeem Mitchell with first-degree attempted murder of four Newark police officers in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (counts one, three, five and seven); four counts of second-degree aggravated assault upon the same police officers in violation of N.J.S.A. 2C:12-1(b)(1) (counts two, four, six, and eight); third-degree possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5(b) (count nine); and second-degree possession of a handgun for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) (count ten). On July 23, 2007, a jury acquitted defendant on counts one, five, and seven charging attempted murder, and counts six and eight charging aggravated assault, but defendant was convicted of second-degree aggravated assault upon two of the police officers (counts two and four), and the weapons offenses (counts nine and ten). The jury was unable to reach a unanimous decision on count three and that count was subsequently dismissed. Following the jury verdict, defendant pled guilty to a separate indictment that charged him with second-degree possession of a handgun by a prohibited person in violation of N.J.S.A. 2C:39-7(b)(1).
On September 10, 2007, the court sentenced defendant to consecutive ten-year prison terms on counts two and four (second-degree aggravated assault), subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a concurrent five-year term with two-and-one-half years of parole ineligibility on count nine (third-degree possession of a handgun without a permit); a concurrent ten-year term with five years of parole ineligibility on count ten (second-degree possession of a handgun for an unlawful purpose); and a ten-year consecutive term with a five-year period of parole ineligibility for second-degree possession of a handgun by a prohibited person, charged in the separate indictment. Thus, defendant's aggregate sentence was thirty years in prison, with twenty-three years of parole ineligibility (seventeen years under NERA with an additional five-year period of parole ineligibility for possession of a handgun by a prohibited person).
On appeal, defendant presents the following arguments:
POINT I THE TRIAL COURT DID NOT INSTRUCT THE JURY ON ALL ESSENTIAL ELEMENTS OF THE OFFENSES, CONFUSING THE JURY AND DEPRIVING MR. MITCHELL OF HIS RIGHT TO DUE PROCESS (Not Raised Below).
A. AGGRAVATED ASSAULT AND ATTEMPTED AGGRAVATED ASSAULT.
1. SECOND-DEGREE AGGRAVATED ASSAULT.
2. THIRD-DEGREE AGGRAVATED ASSAULT/ATTEMPT.
B. POSSESSION OF A HANDGUN WITHOUT A PERMIT - COUNT NINE.
C. WEAPONS CHARGES - COUNTS NINE AND TEN.
POINT II THE TRIAL COURT VIOLATED MR. MITCHELL'S CONSTITUTIONAL GUARANTEE AGAINST DOUBLE JEOPARDY BY FAILING TO MERGE COUNT TEN, POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE, WITH THE ...