On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-02-0739.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and St. John.
In a five-count indictment, a Camden County grand jury charged defendant John Tricoche with the following offenses: first-degree attempted armed robbery, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count four); and second-degree certain persons not to be in possession of weapons, N.J.S.A. 2C:39-7(b) (count five). Following a jury trial, defendant was found not guilty on count one and two lesser-included charges, second-degree attempted robbery and third-degree theft from the person, but he was found guilty on counts two, three, and four. In a second trial before the same jury, defendant was convicted of count five.*fn1
Prior to sentencing, the State filed a motion to sentence defendant to an extended term as a persistent offender under N.J.S.A. 2C:44-3(a). Defendant did not dispute that he was extended-term eligible. Nevertheless, the court found that an appropriate sentence could be imposed "within the normal sentencing guidelines" and denied the State's motion.
At sentencing on November 13, 2009, the court identified three aggravating factors: the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. After merging count four (terroristic threats) with count two (possession of a handgun for an unlawful purpose), the court imposed a nine-year prison term with four-and-one-half years of parole ineligibility on count two. On count three (possession of a handgun without a permit), defendant was sentenced to a concurrent six-year term with three years of parole ineligibility. On count five (certain persons not to possess weapons), the court imposed a consecutive ten-year term with five years of parole ineligibility. Accordingly, defendant was sentenced to an aggregate nineteen-year term of imprisonment subject to nine-and-one-half years of parole ineligibility.
On appeal, defendant's attorney presents the following arguments for our consideration:
THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO CONFRONTATION BY ADMITTING THE HEARSAY STATEMENT OF THE SUPPOSED VICTIM IN THE ABSENCE OF ANY OPPORTUNITY FOR CROSS- EXAMINATION. U.S. CONST., Amends. VI, XIV; N.J. CONST. (1947), Art. 1, Paras. 1, 9 and 10.
BECAUSE THE STATEMENT OF THE NON-TESTIFYING VICTIM, WHICH CONSTITUTED CRITICAL EVIDENCE IN THE CASE, WAS NEVER RECORDED AND WAS REPORTEDLY HEARD BY ONLY ONE POLICE OFFICER, THE COURT SHOULD HAVE INSTRUCTED THE JURY ON THE PROBLEMS INVOLVED IN ACCURATELY TRANSMITTING ORAL UTTERANCES. (Not Raised Below).
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE CHARGE OF TERRORISTIC THREATS.
THE IMPOSITION OF A SENTENCE NEAR THE TOP OF THE RANGE FOR THE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE, COUPLED WITH A CONSECUTIVE TERM AT THE VERY TOP OF THE RANGE FOR CERTAIN PERSONS NOT TO HAVE A ...