On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-10-3548.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Payne, Reisner and Simonelli.
Defendant, Keshawn McNeil, appeals from his convictions on charges of first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, first-degree armed robbery, N.J.S.A. 2C:15-1, first-degree felony murder, N.J.S.A. 2C:11-3a(3), first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser included offense of murder, third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. The convictions arose from the robbery and shooting of Fabio Borges, the landlord of defendant's girlfriend, Staci Marshall.
Upon conviction, defendant was sentenced on the conviction for felony murder to life in prison with the thirty-year parole bar required by N.J.S.A. 2C:11-3b and the eighty-five percent parole bar of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The Graves Act was also held applicable to his sentence. See N.J.S.A. 2C:43-6c. Defendant was given a concurrent sentence of five years for unlawful possession of a handgun. The remaining convictions were merged and dismissed. Defendant has appealed his convictions and his sentence.
On appeal defendant raises the following arguments through counsel:
THE TRIAL WAS IRREPARABLY TAINTED BY THE IMPROPER ADMISSION OF "OTHER BAD ACTS" EVIDENCE PURSUANT TO N.J.R.E. 404(b).
THE COURT ERRED IN ADMITTING MARSHALL'S STATEMENT TO DANIEL LAPORTE THAT SHE AND MCNEIL WERE ON THEIR WAY TO ATLANTIC CITY.
THE PROSECUTOR'S IMPROPER COMMENTS IN SUMMATION, VIEWED IN COMBINATION, WERE SO EGREGIOUS AS TO DEPRIVE DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below.)
THE COURT ERRED IN PERMITTING THE STATE TO INTRODUCE A PHOTO OF DEFENDANT THAT WAS IDENTIFIABLE AS A "MUGSHOT."
THE LIFE SENTENCE IMPOSED ON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL APPLICABLE CIRCUMSTANCES.
Defendant raises the following additional arguments in his pro se brief:
TRIAL COUNSEL FAILED TO ALLOW DEFENDANT TO PARTICIPATE IN VOIR DIRE. BY WAIVING DEFENDANT'S RIGHT TO BE PRESENT DURING VOIR DIRE [COUNSEL] DENIED DEFENDANT'S RIGHT TO DUE PROCESS AND RIGHT TO EFFECTIVE COUNSEL GUARANTEED IN THE 6th AND 14th AMENDMENT[S].
THE TRIAL COURT ERRED WHEN IT RULE[D] AGAINST DEFENSE COUNSEL'S OBJECTION FOR ENTERING TESTIMONY ELICITED FROM STATE'S WITNESS STACI MARSHALL [AND] DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL GUARANTEED IN THE UNITED STATES CONST. 14 AMEND. AND NEW JERSEY CONST.
THE TRIAL JUDGE ERRED WHEN IT ALLOWED BALLISTIC EXPERT TO TESTIFY TO MATTERS THAT W[ERE] SOLELY BASED ON OPINION AND THIS ACT AND CUMULATIVE ACTS OF THIS EXPERT W[ERE] PREJUDICIAL AND THUS DEPRIVED DEFENDANT [OF] THE RIGHT TO A FAIR TRIAL.
In a pro se reply brief, defendant argues:
DEFENDANT WAS DEPRIVED OF HIS RIGHT TO BE PRESENT AT CRITICAL STAGES OF HIS TRIAL WHICH DENIED DEFENDANT THE RIGHT TO DUE PROCESS AND RIGHT TO EFFECTIVE COUNSEL GUARANTEED IN BOTH THE 6th AND 14th AMENDMENTS.
The evidence introduced at trial was sufficient for the jury to conclude that, on February 24, 2007, defendant's girlfriend, Marshall, was living with her twelve-year-old daughter in Newark in property owned by Fabio Borges and Liciane Nunes. On February 23, 2007, Marshall received an eviction notice for nonpayment of rent, addressed to another person.
When Marshall called her landlords, she learned that eviction proceedings had been instituted against her, as well. She ...