On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-08-2873.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2011 -
Before Judges Cuff, Lihotz and St. John.
Defendant Samuel Alexander appeals his April 3, 2009 conviction and sentence for aggravated manslaughter and unlawful possession of a weapon. We affirm in part, vacate in part and remand.
Defendant was charged with three counts: purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3a (1) or (2) (count one); fourth degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d (count two); and third degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (count three). Following a jury trial, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4(a), a lesser-included offense of the murder charge, and unlawful possession of a weapon. The jury was deadlocked on the charge of possession of a weapon for an unlawful purpose. The court declared a mistrial as to that charge, and it was subsequently dismissed by the State.
Defendant is serving a custodial sentence of twenty-two years imprisonment, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the aggravated manslaughter conviction and a concurrent custodial sentence of eighteen months for the unlawful possession of a weapon conviction.
This appeal ensued, and defendant raises the following points for our consideration:
THE TRIAL COURT ERRED BY SUBSTITUTING AN ALTERNATE JUROR DURING JURY DELIBERATIONS RATHER THAN DECLARING A MISTRIAL.
THE TRIAL COURT'S FAILURE TO ADEQUATELY RESPOND TO A JURY'S QUESTION DURING DELIBERATIONS DENIED TO THE DEFENDANT HIS RIGHT TO A FAIR TRIAL.
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT II CHARGING POSSESSION OF A WEAPON UNDER CIRCUMSTANCES NOT MANIFESTLY APPROPRIATE FOR SUCH LAWFUL USES AS IT MAY HAVE INTO THE AGGRAVATED MANSLAUGHTER CONVICTION ARISING OUT OF COUNT I.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
The following pertinent facts were developed at defendant's trial which spanned seven days.
Defendant and the victim, Monty Rollins, were neighbors in a housing complex located in East Orange. In September 2006, defendant gave the victim $100 as advance payment for an ounce of marijuana. The victim never gave defendant the marijuana, but only offered excuses as to why he could not repay the $100 or provide him with the marijuana.
On March 17, 2007, between 10:00 a.m. and 10:30 a.m., defendant was looking out of his housing complex window and saw the victim walking on North Grove Street. Defendant called the victim over to his front door and invited him into his house. Both men then went into the garage to talk. Defendant confronted the victim and a fistfight ensued between them. The fight escalated when defendant picked up a steering wheel locking device, commonly known as the "Club," and hit the victim ...