On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-03-982.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Hayden.
At approximately 11:30 p.m. on July 24, 2007, Husan Denson died as the result of blows to the head administered by defendant Jason Smiley and his co-defendant Robert Street, using a one and one-half pound lifting weight contained in a sock. Following Denson's death, he was carried by Smiley and Street to the basement of the East Orange building in which Smiley resided. Three days later, Smiley's father, Theopolis Smiley and another unnamed individual aided Smiley and Street in taking Denson's body from East Orange to Newark, where it was left in a pool of water created by a sump pump in the sub-basement of a former hospital building scheduled for demolition. The transfer of the body was witnessed, and upon investigation, it was discovered by the Newark police. Identification of the van used to carry the body led to the identification of Smiley and Street. Both confessed, implicating themselves and each other in their confessions.
On March 28, 2008, an indictment was returned against Smiley and Street charging them with second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3a(1) and (2) (count one); first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count four); and second-degree disturbing human remains, N.J.S.A. 2C:22-1a(1)(a). Defendants' trial was scheduled for Monday, January 4, 2010.
One month before trial, by letter dated December 2, 2009, counsel for co-defendant Street informed the prosecutor and trial judge that his client declined to waive his right to confrontation under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), a case holding that Bruton's Sixth Amendment right of confrontation was violated when the confession of his non-testifying co-defendant, which also implicated Bruton, was introduced at trial with a limiting instruction that the jury should disregard the confession when considering Bruton's guilt. Defense counsel stated in his letter: "Should the State wish to sever, I anticipate it will file an appropriate motion under Rule 3:15-2(a)."
The State's motion was served at approximately 4:00 p.m. on January 4, 2010, prior to the commencement of jury selection. On Tuesday, January 5, oral argument was held and, over defense counsels' objections, the trial judge granted severance, scheduling Smiley's trial proceedings to begin on the following day. Jury selection then took place on January 5 and January
12. The trial itself commenced with opening statements being given on the afternoon of Wednesday, January 13, 2010.
At the conclusion of the trial, at which Smiley had presented a defense of self-defense, Smiley was found guilty of second-degree aggravated manslaughter, N.J.S.A. 2C:11-4b, and second-degree disturbing human remains, N.J.S.A. 2C:22-1a. Street thereafter pled guilty to the same charges for which Smiley had been convicted. Both were sentenced on the same day. Smiley received a ten-year sentence for the manslaughter, subject to an eight-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive ten-year sentence for disturbing human remains. Street received a sentence of seven years, subject to NERA, for the manslaughter and a concurrent seven-year sentence for disturbing human remains.
Smiley has appealed, raising the following issues for our consideration:
THE TRIAL COURT ERRED IN GRANTING THE MOTION TO SEVER THE TRIAL.
POINT TWO THE SENTENCE IMPOSED ON THE DEFENDANT/APPELLANT WAS EXCESSIVE ...