On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-11-3773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2012 -
Before Judges Payne, Reisner and Simonelli.
A grand jury indicted defendant Jamil McKinney for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); two counts of first-degree robbery, N.J.S.A. 2C:15-1b (counts two and six); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts four and nine); three counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts five, ten and thirteen); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3a (counts seven and eleven); two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts eight and twelve); second-degree burglary, N.J.S.A. 2C:18-2b (count fourteen); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count sixteen). The charges stemmed from defendant's involvement in a home invasion, along with co-defendant Al-Tariq Wardrick and another person. During the invasion, one of the perpetrators struck Christopher Jones (Christopher) on the head with a gun, causing a sizeable gash; Christopher was robbed of his wallet, watch and car keys, and Shontae Lewis (Lewis) was robbed of her purse.
A jury found defendant guilty of second-degree conspiracy to commit robbery (count one), the first-degree robbery count relating to Christopher (count two), second-degree burglary (count fourteen), and fourth-degree resisting arrest (count sixteen). The jury found defendant not guilty of second-degree aggravated assault (count three), and could not reach a verdict on the remaining counts, including the first-degree robbery count relating to Lewis (count six).
At sentencing, the trial judge merged count one with count two and imposed an eighteen-year term of imprisonment on count two, subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed a concurrent ten-year term of imprisonment on count fourteen, subject to NERA, and a concurrent eighteen-month sentence on count sixteen. The judge also imposed the appropriate fines and penalties.
On appeal, defendant raises the following contentions in his appellate brief:
THE JURY INSTRUCTIONS ON ARMED ROBBERY AND ARMED BURGLARY WERE CONFUSING AND INCORRECT, PARTICULARLY IN A CASE WHERE, AS HERE, THE JURY HAD DIFFICULTY DETERMINING THE DEFENDANT'S GUILT OF THE WEAPONS OFFENSES IN THE INDICTMENT. (Not Raised Below).
AS WAS THE BASIS FOR REVERSAL IN STATE v. GONZALEZ, THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY AND ON AN ATTEMPT TO PREVENT AN ARREST AS A BASIS FOR RESISTING ARREST, BUT DID NOT EVER PROPERLY DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT. (Not Raised Below).
Defendant raises the following contentions in his pro se ...