On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-03-0298.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Ostrer.
Defendant, Freddie L. Graham, was charged in a seven-count indictment with crimes arising out of events that occurred at the same time and place on August 9, 2006 in Paterson. The first two counts pertained to one victim, Wylie Evans, who was killed. Counts three through six pertained to another victim, M.M., who was sexually assaulted, robbed and beaten. The seventh count did not pertain to any particular victim.
More particularly, the charges were as follows: (1) first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) or (2); (2) third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; (3) first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; (4) third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; (5) first-degree armed robbery, N.J.S.A. 2C:15-1; (6) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) or (4); and (7) fourth-degree possession of a weapon (a knife) under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5d.
The jury found defendant not guilty of the first three counts, and guilty of the remaining counts. After merging count seven with count four, which, in turn, was merged with counts five and six, Judge Marmo imposed sentence as follows: On count six, aggravated sexual assault, defendant was sentenced to an extended term as a persistent offender of thirty-years imprisonment with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count five, robbery, the judge imposed a concurrent term of twenty-years imprisonment subject to an 85% parole disqualifier pursuant to NERA.
In the appellate brief filed by his attorney, defendant argues:
THE COURT ERRED IN EXCUSING A DELIBERATING JUROR BECAUSE OF HIS VACATION PLANS, AND THEN, RECONSTITUTING THE JURY WHEN IT WAS IN AN ADVANCED STAGE OF DELIBERATIONS. (Partially Raised Below).
THE INSTRUCTIONS TO THE JURY AFTER IT WAS RECONSTITUTED WERE MISLEADING AND FAILED TO MAKE CLEAR THAT DELIBERATIONS MUST START ANEW. (Not Raised Below).
THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE EXTENDED TERM OF 30 YEARS AS A PERSISTENT OFFENDER.
In a pro se supplemental brief, defendant raises the following additional arguments:
THE TRIAL COURT COERCIVE ENFORCEMENT OF THE ALLEN CHARGE ABRIDGED DEFENDANT 6th AMENDMENT DUE PROCESS OF LAW RIGHT'S TO A ...