On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-03-0361.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011
Before Judges Wefing, Payne and Koblitz.
The opinion of the court was delivered by PAYNE, J.A.D.
Defendant, Keith Pittman, appeals from his conviction for first-degree robbery, N.J.S.A. 2C:15-1, second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2a(1) and 2C:15-1, third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and the lesser-included offence of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7). He was sentenced to a ten-year term of imprisonment, subject to the parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, he makes the following arguments:
THE ADMISSION OF THE RESULTS OF A PHENOLPHTHALEIN TEST OF DEFENDANT'S CLOTHES THAT PURPORTEDLY DETECTED THE PRESENCE OF BLOOD DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL WITHOUT EVIDENCE OF THE TEST'S GENERAL ACCEPTANCE IN THE SCIENTIFIC COMMUNITY AND THE METHODOLOGY USED, IN CONJUNCTION WITH THE STATE'S FAILURE TO PRESERVE THE TEST AND THE CLOTHING. (Not Raised Below.)
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE FOR EXCLUSION OF THE PHENOLPHTHALEIN TEST RESULTS BECAUSE THE COURT WOULD HAVE RULED THE EVIDENCE INADMISSIBLE PURSUANT TO A TIMELY OBJECTION, AND COUNSEL'S FAILURE COULD NOT BE EXPLAINED BY ANY POSSIBLE REASONABLE TRIAL STRATEGY. (Not Raised Below.)
THE JURY INSTRUCTION ON THE SUBSTANTIVE OFFENSE OF AGGRAVATED ASSAULT FAILED TO TELL THE JURY THAT A NECESSARY PRECURSOR TO CONVICTION WAS PROOF BEYOND A REASONABLE DOUBT THAT THE DEFENDANT DID NOT ACT JUSTIFIABLY IN DEFENSE OF ANOTHER AND THUS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below.)
THE STATE COMMITTED PROSECUTORIAL MISCONDUCT IN VOUCHING FOR THE CREDIBILITY [OF] TWO CRUCIAL WITNESSES WHILE SUGGESTING DEFENDANT TAILORED HIS TESTIMONY TO PROVIDE AN INNOCENT EXPLANATION FOR THE EVIDENCE AGAINST HIM; THIS MISCONDUCT DEPRIVED DEFENDANT ...