On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-09-3072.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2011
Before Judges Payne and Reisner.
On the evening of April 21, 2003, following a fight over five dollars that defendant believed he was owed for helping his friend deliver a television to a beauty salon, defendant, Anthony Best, stabbed his friend, Melvin Sandy, causing his death. After initially lying to the police concerning his involvement in the crime, he gave a full confession. He was subsequently indicted for murder, N.J.S.A. 2C:11-3a(1) and (2), fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5d, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.
On the day that his trial was to commence, defendant executed a written waiver of his right to a jury and requested that the matter proceed as a bench trial. After a colloquy between defendant and the judge regarding defendant's rights and a determination by the judge that defendant's waiver had been voluntarily and intelligently made, Judge Vichness granted defendant's request for a bench trial. Following a three-day trial, Judge Vichness found defendant guilty of the lesser included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and of the weapons offenses charged in the indictment. The judge sentenced defendant to thirteen years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the manslaughter conviction and to a concurrent eighteen-month sentence for the fourth-degree weapons conviction. The third-degree weapons conviction was merged with the conviction for manslaughter and dismissed.
Defendant appealed, raising the following issues:
POINT I: THE FORMAL [MIRANDIZED] STATEMENT WAS TAINTED BY THE TWO PRIOR [UNMIRANDIZED] STATEMENTS AND SHOULD HAVE BEEN [SUPPRESSED] BASED ON THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW PRIVILEGE AGAINST SELF-INCRIMINATION.
POINT II: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S RULING PRECLUDING THE DEFENSE OF JUSTIFICATION.
POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S RULING EXCLUDING RELEVANT AND MATERIAL DEFENSE EVIDENCE.
POINT IV: THE DEFENDANT'S RIGHT TO A FAIR GRAND JURY INDICTMENT PROCEEDING AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S DECISION DENYING THE DEFENDANT'S PRE-TRIAL MOTION TO DISMISS THE INDICTMENT.
POINT V: THE SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT ERRED BY IMPROPERLY BALANCING THE AGGRAVATING AND MITIGATING FACTORS.
B. THE DEFENDANT MUST BE RESENTENCED BECAUSE HE WAS SENTENCED ON THE BASIS OF AN UNCONSTITUTIONAL SENTENCING SCHEME.
We affirmed in an unreported opinion, State v. Best, No. A- 5795-04 (App. Div. December 13, 2006), and certification was denied by the Supreme Court, State v. Best, 189 N.J. 650 (2007). On March 25, 2008, defendant sought post-conviction relief (PCR). In a supplemental brief filed by assigned counsel, defendant made the following arguments:
I. THE TRIAL COURT ERRED BY ADMITTING DEFENDANT'S FINAL [MIRANDIZED] STATEMENT, WHICH WAS UNCONSTITUTIONAL AND VIOLATED DEFENDANT'S FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION.
II. DEFENDANT'S SENTENCE WAS EXCESSIVE BECAUSE THE TRIAL COURT ERRED IN WEIGHING THE MITIGATING FACTORS ...