On appeal from the Superior Court Of New Jersey, Law Division, Warren County, Indictment No. 08-02-0063.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 8, 2010 - Decided: Before Judges Cuff and Fasciale.
Defendant, Tyron G. Singleton, appeals from a judgment of conviction for third-degree terroristic threats, N.J.S.A. 2C:12-3a, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b, and third-degree theft of movable property, N.J.S.A. 2C:20-3a. During his summation, the assistant prosecutor misstated the law, the judge failed to correct the misstatement, and the judge raised the concept of other crimes evidence in front of the jury unnecessarily. We reverse.
On September 7, 2007, the victim spent several hours at a bar with her friends Dan Fitzsimons and Michelle Peterson. At 2:00 a.m., the victim, Fitzsimons, Peterson, and some other friends, walked a block or two to the victim's house. The bouncer, Albert Bianco, joined them at the house after he closed the bar.
The victim noticed defendant standing outside her house when she arrived. She had recognized him from being at the bar, but did not invite him to her house. Defendant walked into her house without permission. Bianco asked him if he was looking for someone, and Fitzsimons and Bianco asked him to leave. Before he left, and while the victim was upstairs, defendant rummaged through a purse, stole Peterson's cell phone and then left.
Shortly after leaving, defendant returned, asked for his cell phone, and stated that he did not want to search for it. The group at the house looked for the phone without any success.
Defendant left, returned thirty minutes later, barged through the door with a gun, threatened to use it, and continued to demand his phone. Eventually, defendant left but remained in the front yard and argued with other occupants of the house. The victim warned defendant that the police would arrive if he did not stop yelling. Defendant then walked away and hid his gun behind a tire of a nearby car.
Lieutenant James Faulborn responded to a radio dispatch of a man waving a gun, noticed defendant standing in the middle of the street, and heard a number of people state "that's him, that's the guy." Lieutenant Faulborn then handcuffed defendant, frisked him, and placed him in a police car. No weapon was found on defendant, but the lieutenant located the loaded gun from behind the tire. The lieutenant also recovered from defendant Peterson's stolen cell phone.
Defendant did not testify but his trial counsel conceded in his summation that defendant possessed the gun and had stolen Peterson's cell phone.
After the jury trial, defendant was convicted of all charges. On October 16, 2008, the judge imposed a five-year state prison term, with three years of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c, on the conviction for second-degree possession of a weapon for an unlawful purpose, and concurrent three-year prison terms on the other convictions.
On appeal, defendant raises the following points:
POINT I THE PROSECUTOR'S OPENING AND CLOSING STATEMENTS WERE SO GROSSLY PREJUDICIAL AS TO DEPRIVE DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Partially Raised Below.)
POINT II THE STATE'S FAILURE TO COMPLY WITH THE APPLICABLE RULES OF DISCOVERY SO PREJUDICED DEFENDANT'S ABILITY TO PREPARE A DEFENSE AS TO DEPRIVE HIM OF HIS CONSTITUTIONALLY ...