On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-2606.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2010
Before Judges Graves, Messano and Waugh.
In a five-count indictment defendant Myndell Jackson was charged with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and third-degree terroristic threats, N.J.S.A. 2C:12-3 (count five). Following a trial, a jury acquitted defendant of attempted murder, but he was convicted on the remaining four counts.
At sentencing on July 25, 2008, the court merged defendant's conviction for possession of a handgun for an unlawful purpose (count four) with his conviction for aggravated assault (count two) and sentenced defendant to an eight-year prison term 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. The court imposed a concurrent eight-year term for possession of a handgun without a permit (count three) and a consecutive four-year term for terroristic threats (count five). Thus, defendant was sentenced to an aggregate term of twelve years imprisonment with eight years subject to the provisions of NERA. Appropriate monetary penalties were also imposed.
On appeal, defendant presents the following arguments:
THE TRIAL COURT SHOULD HAVE ORDERED A JUDGMENT OF ACQUITTAL AS TO AGGRAVATED
ASSAULT BECAUSE THE EVIDENCE FAILED TO SUFFICIENTLY ESTABLISH THAT DEFENDANT ACTED WITH PURPOSEFUL INTENT. U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, pars. 1, 9, 10 (Not Raised Below).
THE TRIAL JUDGE IMPROPERLY CHARGED THE JURY ON A THEORY OF AGGRAVATED ASSAULT THAT DID NOT APPLY TO THE FACTS OF THIS CASE. THE ERRONEOUS CHARGE CLEARLY HAD THE CAPACITY TO CONFUSE AND MISLEAD THE JURY AND REQUIRES REVERSAL OF DEFENDANT'S AGGRAVATED ASSAULT CONVICTION. U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, pars. 1, 9, 10 (Not Raised Below).
THE TRIAL JUDGE ERRED BY CHARGING THE JURY ON TERRORISTIC THREATS BASED ON THE FIRING OF THE GUN AT THE APARTMENT DOOR WHEN THAT ACT WAS NOT RELATED TO THE STATE'S THEORY OF GUILT. U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, pars. 1, 9, 10 (Not Raised Below).
DEFENDANT'S CONVICTION FOR AGGRAVATED ASSAULT MUST BE REVERSED BECAUSE THE TRIAL JUDGE CHARGED THE WRONG THEORY OF ATTEMPT LIABILITY. U.S. Const. Amend. XIV; N.J. Const. ...