On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-08-1851.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino, Ashrafi and Fasciale.
After a jury trial, defendant appeals from his convictions for first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d. We conclude that the court's insufficient curative instruction regarding improper comments made by the assistant prosecutor in his summation suggesting that defendant had the burden of producing two witnesses constituted plain error warranting a new trial. We reverse and remand for a new trial.
It is undisputed that a perpetrator robbed the victim, a pedestrian in Atlantic City, and obtained $80. It is also uncontested that the police located defendant within a few blocks from the robbery, seized from him a knife and $80, and arrested him. Shortly thereafter, as defendant stood handcuffed on the street, the victim identified him as the robber. In his trial testimony, however, defendant provided an explanation for why he possessed $80 and a knife, and asserted that the victim had misidentified him.*fn1
In January 2011, the matter was tried over three days. The State produced testimony from the victim and three police officers. Defendant testified and produced one witness, Sean Wilson. The jury found defendant guilty on all charges, and the judge imposed an aggregate eighteen-year prison term with eighty-five percent parole ineligibility, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.*fn2 This appeal followed.
On appeal, defendant raises the following points:
PROSECUTORIAL MISCONDUCT DURING SUMMATION UNCONSTITUTIONALLY SHIFTED THE BURDEN OF PROOF, AND WAS ONLY PARTIALLY ADDRESSED BY THE COURT'S CURATIVE INSTRUCTION. (Not Raised Below).
THE 18-YEAR SENTENCE, WITH AN 85% PAROLE DISQUALIFIER, IS EXCESSIVE BECAUSE THE NEED TO DETER COULD HAVE BEEN SATISFIED BY A LESSER SENTENCE.
Because we agree with defendant's contention that the curative instruction insufficiently addressed the improper remarks by the assistant prosecutor, we reverse the convictions and remand for a new trial. This conclusion makes it unnecessary to address defendant's remaining argument, that his sentence is excessive.*fn3
Defendant testified that on the night before the robbery, he and his girlfriend, Sharlene Hicks, slept in Wilson's apartment, which was located a few blocks away from the robbery. Defendant claimed that on the next day, Hicks gave him $120 to rent a room at the Ascot Hotel, located across the street from the apartment. He stated that he then walked to the Ascot to rent the room, but that, before he left Wilson's apartment, he took a ...