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State of New Jersey v. andrea Alloway

August 9, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANDREA ALLOWAY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-12-1042.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 5, 2012

Before Judges Reisner, Simonelli and Hayden.

Following a jury trial, defendant Andrea Alloway was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) and (7) (counts two and three); two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts four and six); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count nine); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count ten); and third-degree criminal mischief, N.J.S.A. 2C:17-3a(1) (count eleven).*fn1

At sentencing, the trial judge merged counts two, three and four with count one, and sentenced defendant on count one to a five-year term of imprisonment 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 lesser concurrent sentences on the remaining counts, imposed the appropriate assessments and penalty, and ordered restitution in the amount of $500.

On appeal, defendant raises the following contentions:

POINT ONE

DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED BECAUSE THE STATE'S FAILURE TO DISCLOSE EXCULPATORY EVIDENCE CONSTITUTED BOTH A BRADY VIOLATION AND NEWLY DISCOVERED EVIDENCE.

POINT TWO

THE PROSECUTOR'S IMPROPER TACTICS IN SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL. (Partially Raised Below).

POINT THREE

DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE TRIAL COURT FAILED TO CHARGE THE JURY ON THE LESSER INCLUDED OFFENSES OF SIMPLE ASSAULT UNDER N.J.S.A. 2C:12A(1) AND N.J.S.A. 2C:12A(2) AND FOURTH-DEGREE AGGRAVATED ASSAULT UNDER N.J.S.A. 2C:12B(3). (Partially Raised Below).

POINT FOUR

THE ADMISSION OF GRUESOME PHOTOGRAPHS OF THE VICTIM'S EYE INJURY DEPRIVED DEFENDANT OF THE RIGHT TO A FAIR TRIAL.

POINT FIVE

THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL. [(U.S. CONST., AMENDS. VI AND XIV; N.J. CONST. (1947), ART I, PARS. 1, 10).]

POINT SIX

THE CIRCUMSTANCES OF THIS CASE WARRANT A SENTENCE AT THE BOTTOM OF THE ...


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