NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 1, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 09-05-0763 and 09-05-0773.
Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief).
Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel; Matthew P. Tallia, on the brief).
Before Judges Fisher and O'Connor.
In this appeal, we consider whether various comments made by the prosecutor during his opening statement require a reversal of the judgment of conviction. As we conclude that the prosecutor's comments deprived defendant of the right to a fair trial, we reverse the judgment of conviction and remand for a new trial. Given our disposition, we need not reach the additional points raised by defendant in this appeal.
The jury convicted defendant of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); and certain persons not to have weapons, N.J.S.A. 2C:39-7(b).
The evidence adduced during the trial relevant to the issues on appeal is as follows. The State's principal witness, Hannah Cohen, testified her brother had stolen money from defendant. A few days after the theft, defendant approached Cohen while she was seated in a car adjacent to an apartment complex known as Potters. Defendant put a gun to her head, and demanded to know the whereabouts of his money and her brother. He then reached through her window and grabbed her purse and the keys from the ignition. Defendant ran to the other side of the car and, after pointing a gun at a passenger, left the scene. Before leaving, defendant told Cohen she could get her purse back when she delivered to him either her brother or the cash he owed.
On cross examination Cohen admitted giving the police a statement indicating her window was not down far enough to enable defendant to reach into the car and take the keys and her purse. There were problems with the credibility of two eyewitnesses called by the State, as well. One eyewitness testified to seeing defendant leave the scene with a gun and a purse, but admitted to previously telling the police that he had not seen defendant leave the scene with either a gun or a purse. Another eyewitness testified to seeing defendant point a gun at Cohen and the passenger, as well as grab the purse and keys from the ignition, but the eyewitness also maintained defendant remained on the driver's side of the car throughout the entire incident.
The challenged statements made by the prosecutor during his ...