On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-03-0716.
The opinion of the court was delivered by: Messano, P.J.A.D.
Submitted January 10, 2012
Before Judges Messano, Yannotti and Espinosa.
Following a jury trial, defendant Brian Rice, an Irvington police officer, was convicted of second-degree conspiracy to commit official misconduct, N.J.S.A. 2C:5-2 and 2C:30-2 (count one); second-degree official misconduct, N.J.S.A. 2C:30-2 (count two); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count three).*fn1 The judge merged count one into count two, sentenced defendant as a third-degree offender pursuant to N.J.S.A. 2C:44-1(f)(2), and imposed a custodial sentence of three years with a three-year period of parole ineligibility pursuant to N.J.S.A. 2C:43-6.5(a). The judge sentenced defendant to a concurrent nine-month term on count three.
The State filed an appeal of the sentence, and defendant sought leave to file his cross-appeal as within time, which we administratively granted. The State raises the following point on appeal:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED DEFENDANT ONE DEGREE LOWER PURSUANT TO N.J.S.A. 2C:44-1(f)(2)
Defendant raises the following points in his cross-appeal:
THE REFERENCES TO STATEMENTS PROVIDED TO THE INTERNAL AFFAIRS DEPARTMENT BY THE PARTIES INVOLVED IN THE INCIDENT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION. (Not raised below)
THE TRIAL COURT'S INSTRUCTIONS TO THE JURY WAS [SIC] INSUFFICIENT AND INADEQUATE AND DEPRIVED DEFENDANT OF A FAIR TRIAL (Not raised below)
A. FAILURE TO CHARGE REGARDING THE PROPER EVALUATION OF DEFENDANT'S ORAL STATEMENTS
B. FAILURE TO GIVE A LIMITING INSTRUCTION REGARDING UNCHARGED CRIMINAL CONDUCT
C. FAILURE TO ADEQUATELY INSTRUCT THE JURY ON THE CHARGE OF ...