On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-04-0577.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010
Before Judges Wefing, Payne and Baxter.
Defendant, Lennox Risden, appeals from his conviction by a jury of first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (Count One); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (Count Two); first-degree robbery, N.J.S.A. 2C:15-1 (Count Three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (Count Four). He also appeals his sentence of life imprisonment for murder, subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and his consecutive sentence of twenty years in custody for robbery, also subject to NERA.
On appeal, defendant raises the following issues for our consideration:
I. THE TRIAL JUDGE DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND THE PRESUMPTION OF INNOCENCE WHEN HE DENIED DEFENSE COUNSEL'S REQUEST TO QUESTION THE JURORS ABOUT A PHOTOGRAPH OF DEFENDANT WEARING HANDCUFFS WHICH HAD APPEARED IN THE NEWARK STAR LEDGER AND THEN IMMEDIATELY STARTED STATIONING A SHERIFF'S OFFICER BETWEEN DEFENDANT AND THE JURORS. (Partially Raised Below)
II. THE JURY INSTRUCTIONS ON ACCOMPLICE CULPABILITY DID NOT COMPLY WITH STATE V. BIELKIEWICZ. (Not Raised Below)
III. REVERSAL IS REQUIRED BECAUSE THE TRIAL JUDGE, BY OBSERVING THAT THE NAME "BILL" HAD BEEN "THROWN OUT" BY THE DEFENSE, INDICATED TO THE JURY THAT HE DID NOT BELIEVE THAT PORTION OF DEFENDANT'S STATEMENT AND OPERATED TO UNDERCUT THE DEFENSE CASE. (Not Raised Below)
IV. A NEW SENTENCING HEARING IS REQUIRED SINCE [THE TRIAL] JUDGE, ABOUT A MONTH AFTER SENTENCING, REVISED DEFENDANT'S SENTENCE UPWARD WITHOUT A HEARING AND OUTSIDE THE PRESENCE OF DEFENDANT AND HIS ATTORNEY. (Not Raised Below)
V. THE SENTENCE MUST BE REVERSED BECAUSE IT WAS EXCESSIVE; ADDITIONALLY, THE NERA SENTENCES VIOLATE FEDERAL AND STATE CONSTITIONAL PROSCRIPTIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT.
VI. REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH IN POINTS I THROUGH V, SUPRA.
We affirm defendant's convictions, but remand for resentencing.
Evidence adduced at trial supported the State's position that defendant, a Jamaican native, sought to purchase a used truck for the use of his family in Jamaica. In that connection, he had on several occasions visited Brandywine Trucking, a used truck business in Woodbridge, New Jersey, owned and operated by Jerome O'Brien. On December 23, 2004, defendant borrowed an Acura Integra owned by a co-worker, Noel McKenzie, and drove it to Brandywine.
Kerisha Sayles, a customer who had gone to Brandywine with her husband, Leopold, to pick up an order for parts, testified that while at Brandywine, she had observed O'Brien in his office apparently sleeping. His office door was locked. Although she attempted to rouse O'Brien by knocking, she could not do so. Some time later, she was approached by defendant, who asked if she knew where O'Brien was. Thereafter, defendant approached Leopold Sayles, asking him "what's up with Jerry," and informing Leopold that he had come to pay O'Brien, but that he had left his keys in O'Brien's locked office. The two men then approached O'Brien's office and observed him to be slumped in a chair at his desk. When O'Brien failed to respond to repeated pounding on the office door, Leopold called 9-1-1. The police arrived, and after the office door had been opened, determined that O'Brien had been shot in the chest and was dead. It was subsequently determined that he died from a single close-range shotgun blast.
Defendant was transported to police headquarters in furtherance of the police's criminal investigation. After defendant left the police vehicle, a live shotgun shell was found where he had been sitting. At the station, and after receiving Miranda*fn1 warnings, defendant gave a statement in which he claimed that he drove to Brandywine in Noel McKenzie's car, arriving at approximately noon. Once there, he encountered an acquaintance named "Bill" and agreed at Bill's urging to assist him in robbing O'Brien at gunpoint with an allegedly unloaded gun. Bill gave the gun to defendant, instructing him to point it at O'Brien while Bill accomplished the robbery. However, ...