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State of New Jersey v. Kevin Baxter

August 3, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN BAXTER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 06-11-0932 and 07-04-0231.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 16, 2011

Before Judges Fuentes and Gilroy.

A jury found defendant guilty of first-degree robbery, N.J.S.A. 2C:15-1a(2) (count one); and of carjacking, N.J.S.A. 2C:15-2a(1) (count two). On July 18, 2008, after finding aggravating sentencing factors, N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating sentencing factors, N.J.S.A. 2C:44-1b, the trial court sentenced defendant to two concurrent fifteen-year terms of imprisonment, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn1 The court also sentenced defendant on an unrelated fourth-degree conviction of aggravated assault, N.J.S.A. 2C:12-1b(5)(h), to a concurrent eighteen-month term of imprisonment. The court imposed all appropriate fines and penalties.

On appeal, defendant argues:

POINT I.

IMPROPER SUMMATION REMARKS BY THE PROSECUTOR, URGING THAT THE INSANITY DEFENSE WAS UNDERMINED BY DEFENDANT'S INITIAL INVOCATION OF HIS RIGHT TO COUNSEL, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. 1947) ART. I, PARS. 1, 9, 10 (NOT RAISED BELOW).

We affirm and remand for the court to impose the mandatory five-year term of parole supervision upon release on defendant's first-degree NERA convictions.

On May 23, 2006, defendant walked into a bank in North Plainfield and handed a teller a note stating "[p]lease give me all your money or I'll shoot you dead." Upon the teller responding in the negative, defendant asked her if she wanted "to take that chance" while making a gesture under his jacket with his hand. Defendant told the teller "hurry up. I got a gun. I got a gun, hurry up, give me the money." Upon the teller again refusing to give him any money, defendant exited the bank followed by the bank manager and a customer. After his exit, defendant forced his way into an occupied motor vehicle parked near the bank. In doing so, defendant pulled a front passenger from her seat and threatened the driver by telling the driver he had a gun. Upon hearing defendant's threats, the driver took the keys out of the vehicle's ignition and opened the driver's door in an attempt to flee when defendant shoved the driver out of the vehicle onto the roadway. After failing to steal the vehicle, defendant fled into a nearby building where he was subsequently arrested by the police.

During processing at police headquarters, defendant provided the police with his medical and mental health history that included taking medication, using drugs, attempting suicide, and having been recently hospitalized with a bipolar disorder and depression, and his release from the hospital the day prior to the incident.

Before being questioned, the police detectives who were conducting the investigation advised defendant of his Miranda*fn2

warnings. Defendant waived his Miranda rights and signed a waiver form. In his initial interview, defendant confessed to handing the note to the teller, and the teller refusing to turn over any money to him. He also admitted that he had entered an occupied, parked motor vehicle in an attempt to steal it.

Upon being requested to provide a taped statement, defendant agreed. Defendant initially admitted during the taped interview that he had entered the bank and handed the teller the note because "[he] wanted some money, to get high." Upon making that statement, defendant informed the detectives that he wanted to discuss the matter with his attorney. ...


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