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State v. Gideon

October 18, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONNELL GIDEON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-10-4097.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2010

Before Judges Payne and Baxter.

Following a trial by jury, defendant Donnell Gideon appeals from his conviction on charges of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser included offense of murder (count one); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a) (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); four counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (counts four, five, six and seven); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 (count eight); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count nine); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count eleven).

After merging count four with count three, count six with count five and count nine with count two, the judge imposed the following sentence: on count one, a twenty-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 (NERA); on count two, a concurrent fifteen-year NERA term; on count three, a seven-year NERA term, consecutive to the sentence on counts one and two; on counts five and seven a four-year term of imprisonment on each, subject to a three-year Graves Act parole ineligibility term, concurrent to each other, but consecutive to the sentence imposed on counts one and two; on count eight, a fifteen-year NERA term, concurrent to the sentence imposed on counts one and two; and on count ten, a four-year term of imprisonment consecutive to counts one and two but concurrent to counts three, five, seven and eight. The aggregate sentence was twenty-seven years, subject to the NERA eighty-five percent parole ineligibility term.

On appeal, defendant raises the following claims:

I. [DEFENDANT'S] RIGHT TO CONFRONTATION WAS VIOLATED BY THE TRIAL COURT'S ADMISSION OF THE TESTIMONY OF DR. THOMAS REBBECCHI. U.S. Const., Amends VI, XIV; N.J. Const. (1947), Art. 1, Par. 10.

II. [DEFENDANT'S] SENTENCE IS EXCESSIVE.

A. The Sentencing Court Inappropriately Found and Weighed Aggravating Factors

B. The Sentencing Court Failed to Adhere to the Principle of Progressive Discipline in Sentencing [Defendant]

C. The Sentencing Court Failed to Find Mitigating Factors Militating in Favor of a Lesser Sentence

D. The Sentencing Court Considered Improper Information in Meting Out [Defendant's] Sentence.

In a pro se supplemental brief, defendant raises the following additional claims:

I. THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE FREE FROM SELF-INCRIMINATION BY BEING FORCED TO GIVE AN INCRIMINATING AND DAMAGING STATEMENT AGAINST HIMSELF, IN VIOLATION [OF THE] CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES WHEREFORE THE CONVICTION MUST BE REVERSED AND THE INDICTMENT DISMISSED.

II. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE WHEREFORE THE CONVICTION SHOULD BE REVERSED. (Partially Raised Below)

III. DEFENDANT WAS DENIED DUE PROCESS BY AN INCONSISTENT VERDICT CAUSED BY FAULTY JURY INSTRUCTIONS AS TO THE ELEMENTS OF MURDER AND ATTEMPTED MURDER, WHEREFORE A NEW TRIAL SHOULD BE GRANTED.

We reject each of these claims and affirm defendant's ...


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