On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-12-03781.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2010
Before Judges Payne and Koblitz.
Defendant, David Proctor, appeals from his convictions for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; second-degree robbery, N.J.S.A. 2C:15-1; and third- degree unlawful restraint, N.J.S.A. 2C:13-2a, as a lesser included offense of first-degree kidnapping. He appeals as well from his sentence of ten years in custody, subject to the eighty-five percent parole ineligibility period of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal defendant raises the following arguments:
POINT I THE TRIAL COURT ABUSED ITS DISCRETION BY DEPRIVING THE DEFENDANT OF THE OPPORTUNITY TO ESTABLISH THAT OUT-OF-COURT IDENTIFICATIONS BY MCGEE WERE UNRELIABLE.
A. Any Improper Identification Procedures With Respect To Witness Scales Constituted "Some Evidence" To Warrant Further Inquiry Into The Procedures Used With Witness McGee, Because They Were Linked By The Same Investigation And Indictment (Prior To Severance Of Counts).
B. The Record Shows That The Preliminary Inquiry Into The Identification Procedures Used By Police, Permitted By The Trial Court, Was Grossly Insufficient, Thereby Depriving Proctor Of Due Process Of Law.
POINT II THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.
A. The State Did Not Present Any Evidence That McGee Was Removed A Substantial Distance From The Place Where She Was Found.
B. The Trial Court Committed Prejudicial Error Clearly Capable Of Producing An Unjust Result In Overcharging The Jury On Kidnapping And By Including Kidnapping As An Element Of Robbery.
POINT III THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS.
POINT IV THE IMPOSED AGGREGATE TEN-YEAR SENTENCE WITH AN EIGHTY-FIVE PERCENT PAROLE DISQUALIFIER PURSUANT TO THE NO EARLY RELEASE ACT IS MANIFESTLY ...