On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-02-0205.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Carchman and Graves.
In a six-count indictment, a Burlington County grand jury charged defendant Christopher Jones with fourth-degree aggravated assault for pointing a firearm ("a Daisy Powerline BB gun") in the direction of Tamika Reed, N.J.S.A. 2C:12-1(b)(4) (count one); second-degree possession of the BB gun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree possession of the BB gun without a permit, N.J.S.A. 2C:39-5(b) (count three); third-degree aggravated assault for committing a simple assault upon a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a) (count four); second-degree escape with the use of force, N.J.S.A. 2C:29-5(a) (count five); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count six). Following a three-day jury trial, defendant was convicted of four third-degree offenses: possession of the BB gun without a permit (count three); aggravated assault on a law enforcement officer (count four); the lesser-included offense of escape without the use of force (count five); and resisting arrest (count six). Pursuant to Rule 3:18-1, the court dismissed count two at the close of the State's case, and the jury found defendant not guilty of count one.
At sentencing on November 16, 2007, the court granted the State's motion to sentence defendant to an extended term as a persistent offender under N.J.S.A. 2C:44-3(a). Defendant was sentenced to serve a seven-year prison term, with three-and-one-half years of parole ineligibility, on counts three, four, five, and six. The court determined that the four extended term sentences were to run concurrently.
On appeal, defendant presents the following arguments:
THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AS A RESULT OF THE CLEARLY ERRONEOUS JURY INSTRUCTION THAT FAILED TO REQUIRE THE STATE TO PROVE AN ESSENTIAL ELEMENT OF THE OFFENSE OF POSSESSION OF A HANDGUN WITHOUT A PERMIT. (NOT RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY ALLOWING THE PROSECUTOR TO ELICIT TESTIMONY ABOUT AND ALLOWING A WITNESS'S CONTINUED REFERENCE TO DEFENDANT'S ALLEGED USE AND ATTEMPTED PURCHASE OF COCAINE. (PARTIALLY RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY ALLOWING USE OF THE DEFENDANT'S PRIOR CONVICTIONS OF VIOLATIONS OF CONTROLLED DANGEROUS SUBSTANCE LAWS FOR IMPEACHMENT PURPOSES. (NOT RAISED BELOW).
AS DEFENSE COUNSEL FAILED TO PROVIDE THE DEFENDANT WITH A COPY OF HIS DISCOVERY THE DEFENDANT WAS DEPRIVED OF THE ABILITY TO INTELLIGENTLY EVALUATE POTENTIAL ACCEPTANCE OF THE PLEA OFFER AND DEFENDANT WAS THUS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. (RAISED BELOW).
AS THE COURT FAILED TO AWARD MITIGATING FACTORS TO WHICH THE DEFENDANT WAS CLEARLYENTITLED AND THEREAFTER FOCUSED ONLY ON DEFENDANT'S PRIOR RECORD AND NOT THE OFFENSES FOR WHICH HE WAS CONVICTED THE EXTENDED TERM SENTENCING PROCESS WAS FUNDAMENTALLY FLAWED AND SHOULD THE CONVICTIONS NOT BE ...