NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-01-0209.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Axelrad, Sapp-Peterson and Haas.
After the court waived juvenile defendant Darien Weston for prosecution as an adult, a grand jury returned a multi-count indictment charging him with first-degree murder, first-degree kidnapping, tampering, hindering, and weapons offenses. Two trials followed. At the first trial, the jury convicted defendant of third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b (Count Two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three); first-degree kidnapping, N.J.S.A. 2C:13-1b(1) and (2) (Count Five); third-degree terroristic threats, N.J.S.A. 2C:12-3a (Count Seven); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (Count Eight); and third-degree hindering apprehension, N.J.S.A. 2C:29-3b(3) (Count Nine). The jury was unable to reach a verdict on first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (Count One); first-degree carjacking, N.J.S.A. 2C:15-2a(1-4) (Count Four); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (Count Six); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (Count Eleven). A second trial commenced at which the jury convicted defendant of first-degree murder (Count One), first-degree carjacking (renumbered Count Two), and first-degree felony murder (renumbered Count Three), and acquitted defendant of fourth-degree aggravated assault (renumbered Count Four).
At sentencing, the court imposed a life sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree murder conviction, to be served consecutive to the thirty-year custodial sentence on the kidnapping conviction, which was also subject to NERA, and the five-year custodial sentence imposed on the terroristic threats conviction. The court merged the felony murder and possession of a weapon for an unlawful purpose convictions and imposed five-year terms of imprisonment on each of the remaining convictions to be served concurrent to each other and to the greater offenses.
On appeal, defendant raises the following points:
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE JURY WAS WRONGLY ALLOWED TO TAKE THE VIDEOTAPED STATEMENTS OF TWO EYEWITNESSES INTO THE JURY ROOM AND PLAY THEM REPEATEDLY OUTSIDE THE PRESENCE OF THE COURT, COUNSEL, AND THE DEFENDANT. (Not Raised Below).
THE INSTRUCTION ON TERRORISTIC THREAT (COUNT 7) FAILED TO CLEARLY STATE THE CRIME OF VIOLENCE THREATENED. (Not Raised Below).
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENSE COUNSEL, IN BOTH THE FIRST AND SECOND TRIAL, FAILED TO FILE A MOTION FOR A WADE HEARING WHERE JUVENILE EYEWITNESSES IDENTIFIED THE DEFENDANT FROM A SINGLE PHOTOGRAPH. (Not Raised Below).
THE COURT ERRED IN IMPOSING AN AGGREGATE SENTENCE OF LIFE WITH A 35-YEAR CONSECUTIVE SENTENCE AS IT WAS IN PART ILLEGAL, IMPROPERLY MADE CONSECUTIVE, AND MANIFESTLY EXCESSIVE. (Not Raised Below).
A. THE SENTENCE ON COUNT 8 IS ILLEGAL BECAUSE IT EXCEEDS THE SENTENCE RANGE FOR FOURTH-DEGREE CRIMES.
B. THE CONSECUTIVE SENTENCE ON KIDNAPPING (COUNT 5) ...