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State v. Mitchell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 20, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NAEEM MITCHELL, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-03-0888 and 06-03-0889.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 SUBSTANTIVE OFFENSE OF AGGRAVATED ASSAULT (Not Raised Below).

POINT III THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING CONSECUTIVE PERIODS OF PAROLE SUPERVISION ON TWO NERA OFFENSES (Not Raised Below).

POINT IV THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), CERT. DENIED, 475 U.S. [1014] (1986).

A. TWO AGGRAVATED ASSAULT CONVICTIONS.

B. THE WEAPON BY CERTAIN PERSONS COUNT.

POINT V THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

Based on our review of the record, the briefs, and the applicable law, we are satisfied that defendant's arguments pertaining to his convictions are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). However, we remand for the entry of a corrected judgment of conviction.

A little after midnight on September 24, 2005, Newark police officers Edward Vernotica (Vernotica) and Anthony Rawa (Rawa) were on routine patrol in the area of the Seth Boyden Housing Complex, when they observed an individual, later identified as defendant, dressed in a long Army camouflage coat. Because it was a warm evening and defendant appeared to be holding something under his coat, the officers continued to observe defendant as he entered an apartment building at 105 Center Terrace.

"Within seconds," the officers observed defendant exit the building "to look around," before he went back into the building. Vernotica testified that while defendant was outside of the building, he "appeared" to have a handgun in his right hand. Similarly, Rawa testified that "defendant had an object, possibly a weapon, in his right hand." At that point, the officers exited their vehicle, drew their weapons, and entered the building. Upon entering, Vernotica shouted: "Newark Police, police, drop the weapon."

Although the officers could not see defendant, they heard him running up the stairs and the officers "proceeded with caution." Vernotica testified he again yelled: "Drop the gun. Drop the gun. Newark police, police," but defendant kept running up the stairs to the third floor. When defendant reached the third floor, Vernotica testified he again shouted: "Police, drop the weapon."

As the two officers were proceeding up the stairs, a shot was fired from the third floor and Vernotica felt a burning sensation on his right wrist. He later learned that he had been grazed by a bullet. Rawa returned to the first floor to call for backup while Vernotica remained on the second floor landing. Vernotica testified he could not see anyone on the third floor landing, but he heard someone shouting: "Come on up. I got more where that came from. I'm going to kill me two cops tonight. Come on up."

A few moments later, Sergeant Arthur Jorge (Jorge) and Officer Ronald Polhill (Polhill) arrived on the scene. After being advised of the situation, Polhill climbed the stairs to the second floor, and he testified as follows: "As I came up to the second floor, . . . I saw the shadow and I turned, faced up and that's when I saw the barrel . . . over the railing and that's when . . . I was shot right in the right elbow."

As Polhill was being moved to a safe location, Vernotica observed a hand holding a gun on the third floor railing, and he "fired one round towards the hand." When he was asked "did you hear anything at that point?", Vernotica testified he "heard a moan" coming from the third floor.

Although Vernotica could not see defendant he called out to him, "enough's enough . . . somebody's gonna get killed, you already shot at two cops. . . . Give up, it's over with." Vernotica promised defendant that no one would hurt him. Defendant told Vernotica that he was shot in the hand, and provided his name, age, and address. Vernotica felt they had "built up a little rapport." Vernotica continued to talk to defendant, and after defendant agreed to "throw the bullets down the steps" and to "place the weapon down," he was arrested.

Defendant testified on his own behalf and acknowledged he had two prior convictions. According to defendant, he went to 105 Center Terrace on September 24, 2005, after he received a telephone call from his friend "Angie," who lived at that address. When defendant arrived at Angie's apartment, she told defendant she was scared because she had gotten "into a heated argument with some guys" who were outside of the building, and "they had pulled a weapon out on her."

Defendant told Angie he would "take care of it." While he was searching the building for weapons, he found a black plastic bag with a gun, gloves, and bullets under a radiator. Defendant testified he put the gloves on to avoid "touching the weapon with [his] bare hands," and he "proceeded to go upstairs" with the gun and bullets to tell Angie he had found a gun.

On his way to Angie's apartment, defendant heard the "bottom stairs door" opening "in a quiet sneaky type of manner," and he hurried up the stairs taking two steps at a time. Defendant testified he heard footsteps and was scared because he "thought it was the guys probably coming in there to see what I was doing . . . [and] they would have noticed that . . . their gun was gone." Defendant explained he did not go to Angie's apartment because it would have "put her in even more danger." Instead, he fired the gun down towards the second floor landing from the stairwell. Defendant also testified that when he reached the third floor landing, he "fired another shot straight down to the second floor landing" because he thought somebody was "coming to hurt [him]" and his "life was in danger."

After shooting down the stairs, defendant noticed that his hand was bleeding, and he claimed he injured himself after firing the gun. Defendant also claimed he never heard anyone saying: "Police, put down your gun" because his ears were ringing from the shots he fired. Defendant testified he did not realize the police were in the building until he saw a crowd of people and police cars outside.

Defendant's friend, Angie, did not testify at trial. Defendant claimed he could not locate her and that he did not know her last name.

In his first point, defendant argues the jury instructions were deficient. It is clear that jury instructions are essential to a fair trial. State v. Collier, 90 N.J. 117, 122 (1982) (citing State v. Green, 86 N.J. 281, 287 (1981)). A jury charge is essentially "a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990).

Because defendant's present arguments were not presented to the trial court, we have reviewed them under the plain error standard of review. R. 2:10-2. Under that standard, defendant must show "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). Based on these principles and our examination of the jury charge in its entirety, we find no error, much less plain error.

In his second point, defendant argues the trial court erred by failing to merge his conviction for second-degree possession of a handgun for an unlawful purpose on count ten with his second-degree aggravated assault convictions on counts two and four. "The purpose of merger is to avoid double punishment for a single wrongdoing," State v. Diaz, 144 N.J. 628, 637 (1996). Under the circumstances present in this case, we agree that merger was appropriate because defendant's unlawful purpose in possessing the gun was to commit the substantive offense of second-degree aggravated assault. Id. at 636.

In his third point, defendant argues the trial court abused its discretion by imposing consecutive periods of parole supervision on two NERA offenses (counts two and four). However, the State argues the intended result of N.J.S.A. 2C:43-7.2(c) "cannot be fully realized" without consecutive supervisory terms. In a recent decision, this court held "that the mandatory periods of parole supervision on consecutive NERA sentences must be served concurrently." State v. Friedman, 413 N.J. Super. 480, 491 (App. Div. 2010). Accordingly, we reverse the imposition of two consecutive periods of parole under NERA.

Defendant also claims the imposition of consecutive sentences was contrary to the principles enumerated in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). We do not agree. The trial court carefully evaluated the Yarbough factors and fully explained its reasons for imposing consecutive sentences. Moreover, the "no free crimes" criteria espoused in Yarbough would be rendered meaningless if defendant received concurrent sentences. Id. at 643; see also State v. Molina, 168 N.J. 436, 442 (2001) ("[C]rimes involving multiple victims represent an especially suitable circumstance for the imposition of consecutive sentences.").

In view of the foregoing, the matter is remanded for the entry of a corrected judgment that will merge count ten and impose concurrent NERA supervisory terms. In all other respects, the judgment under review is affirmed.

20100820

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