NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2013
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-12-3640 and 08-04-1198.
Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, Deputy Section Chief, Motions and Appeals Unit, of counsel and on the brief).
Before Judges Graves and Ashrafi.
In a seven-count indictment, defendant Perry Alston and co-defendant James Woods were jointly charged with first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1) (count one); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count three); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a)(1) (count four); and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a) (count six). Defendant was separately charged with third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count five); and third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-10.5 (count seven). Following a jury trial in which he represented himself with the help of standby counsel, defendant was acquitted of count seven, but convicted of the remaining charges.
At sentencing on August 13, 2010, the court denied the State's motion to sentence defendant to an extended term as a persistent offender. The court identified three aggravating factors: the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. After merging counts two, three, and four into count one, the court sentenced defendant to a nineteen-year prison term, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant received concurrent five-year terms on counts five and six, and a consecutive four-year term for a violation of probation on a separate indictment.
Defendant presents the following arguments on appeal:
THE PROSECUTOR IMPROPERLY COMMENTED DURING CLOSING ARGUMENTS ON THE DEFENDANTS' DECISION NOT TO TESTIFY. (Not Raised Below)
A. THE PROSECUTOR'S COMMENTS DURING CLOSING ARGUMENT WERE IMPROPER.
B. THE TRIAL COURT'S FAILURE TO GIVE AN IMMEDIATE CURATIVE ...