NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-06-0527.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Axelrad, Sapp-Peterson and Haas.
A grand jury indicted defendant Eric Gray with first-degree robbery, N.J.S.A. 2C:15-1(a)(1) and (2) (Count One); second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Three); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(a) (Count Four). Following unsuccessful motions to dismiss the indictment and exclude the statement he gave to police based upon a Miranda violation, the matter proceeded to trial where a jury convicted defendant of second-degree robbery and third-degree theft from a person, as lesser-included offenses of Count One. Defendant was acquitted of Counts Two and Three. After conducting an evidentiary hearing, the court denied defendant's post-trial motion for a new trial. At sentencing, the court granted the State's motion for an extended term and sentenced defendant as a "persistent offender" to a thirteen-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the second-degree robbery conviction. The third-degree theft conviction was merged into the second-degree robbery conviction, and the State dismissed Count Four of the indictment. The present appeal followed.
On appeal, defendant raises the following points:
THE TRIAL COURT ERRED IN DENYING GRAY'S MOTION TO SUPPRESS HIS STATEMENT BECAUSE THE TOTALITY OF THE CIRCUMSTANCES ESTABLISH THAT HE WAS UNDER THE INFLUENCE OF NARCOTICS AND UNABLE TO KNOWINGLY AND VOLUNTARILY WAIVE HIS MIRANDA RIGHTS.
GRAY'S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE TRIAL COURT REFUSED TO ALLOW DEFENSE COUNSEL TO CROSS-EXAMINE THE VICTIM ABOUT HIS ILLEGAL IMMIGRATION STATUS TO ATTACK HIS CREDIBILITY AND ESTABLISH BIAS.
BECAUSE NO FORCE WAS USED AND NO BODILY INJURY RESULTED DURING THE THEFT, THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON SECOND-DEGREE ROBBERY AS A LESSER-INCLUDED OFFENSE TO FIRST-DEGREE ROBBERY.
THE TRIAL COURT'S INSTRUCTIONS ON THE LESSER-INCLUDED ROBBERY AND THEFT OFFENSES FOR COUNT ONE WERE FLAWED BECAUSE THE COURT FAILED TO INFORM JURORS THAT THEY COULD ONLY FIND GRAY GUILTY OF ONE LESSER-INCLUDED OFFENSE, FAILED TO PROPERLY DISTINGUISH THE OFFENSES, FAILED TO PROVIDE GRADINGS FOR THE THEFT OFFENSES, AND FAILED TO TAILOR THE CHARGE TO THE FACTS OF THE CASE. THE VERDICT SHEET FURTHER COMPOUNDED THIS ERROR BY FAILING TO INFORM THE JURORS THAT THEY WERE TO CONSIDER EACH LESSER INCLUDED OFFENSE INDIVIDUALLY. (NOT RAISED BELOW).
THE CUMULATIVE IMPACT OF THE ERRORS DENIED GRAY A FAIR TRIAL.
THE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND SHOULD BE REDUCED.
The following additional points were raised in defendant's pro se supplemental brief:
INDICTMENT SHOULD HAVE BEEN DISMISSED FOR FAILURE OF THE PROSECUTOR TO PRESENT EXCULPATORY EVIDENCE FOR THE GRAND JURY.
THE COURT'S RULING DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AND DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL. U.S. [CONST. AMEND. VI, ] ART. 1[, ¶] 10 of the N.J. [CONST.]
IT IS PREJUDICE TO THE DEFENDANT FOR THE JURY TO HAVE KNOWLEDGE OF HIS INCARCERATION STATUS AT TRIAL[, ] WHICH IS A VIOLATION OF THE DEFENDANT'S ...