On appeal from the Superior Court of New Jersey, Criminal Division, Union County, Indictment No. 09-06-0521.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2013 -
Before Judges Sapp-Peterson, Nugent and Haas.
Tried before a jury on a five-count indictment, defendant was convicted of second-degree aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1b(1) (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count two); and fourth-degree obstructing the administration of law or other governmental function, N.J.S.A. 2C:29-1 (count four). The trial judge dismissed count five, third-degree resisting arrest, N.J.S.A. 2C:29-2a on defendant's motion. The jury found defendant not guilty of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three).
The judge sentenced defendant to eight years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, on count one; fifteen months in prison on count two; and eighteen months in prison on count four. The sentences were to run concurrent with each other. Defendant was also assessed appropriate fines and penalties.
On appeal, defendant has raised the following contentions:
THE JURY INSTRUCTIONS AND VERDICT SHEET WERE SO DEFICIENT AS TO COMPEL REVERSAL OF THE CONVICTIONS FOR UNLAWFUL POSSESSION OF A WEAPON AND OBSTRUCTION OF THE ADMINISTRATION OF LAW OR OTHER GOVERNMENTAL FUNCTION, AS DEFENDANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
A. The Verdict Sheet and the Re-Charge on Unlawful Possession of a Weapon Failed to Adequately Remind the Jury that Intoxication Applied as a Defense to this Offense.
B. The Verdict Sheet and Charge on Obstruction of the Administration of Law or Other Governmental Function
Prevented the Jury From Properly Considering the Elements of the Offense or the Intoxication Defense, Depriving Defendant of Due Process and A Fair Trial. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
1. Two Theories of Guilt of Obstruction Were Insufficient Under the Statute.
2. If It Were Appropriate to Present These Theories of Guilt to the Jury, The Charge Was So Defective as to Impede Deliberations.
3. On The State's Theory That A Single Shove Of A Single Police Officer Was Sufficient For A Finding Of Obstruction, Errors In The Recharge And Verdict Sheet Were So Defective As To Impede Deliberations.
PROSECUTORIAL MISCONDUCT COMPELS REVERSAL OF THE CONVICTIONS, AS DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED. U.S. Const. Amend. XIV and N.J. Const. Art. 1 Pars. 1, 9, 10.
A. Comments During Trial.
B. Comments at Sentencing.
THE SENTENCES IMPOSED WERE ...