NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-05-1273.
Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent/cross-appellant (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).
Appellant/cross-respondent filed a pro se supplemental brief.
Before Judges Messano and Hayden.
Following a jury trial, defendant Jerod K. Wise was convicted of the first-degree murder of Curtis Johnson, N.J.S.A. 2C:11-3(a)(1) and (2), and acquitted of fourth-degree possession of a knife, N.J.S.A. 2C:39-5d, and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d. The judge sentenced defendant to imprisonment for life, with a thirty-five year period of parole ineligibility.
Defendant raises the following points on appeal:
THE TRIAL COURT ERRONEOUSLY FAILED TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF PASSION-PROVOCATION MANSLAUGHTER. (Not raised below)
THE STATE'S INTRODUCTION OF OVER 20 PHOTOGRAPHS OF BLOODSTAINS, AS WELL AS THE BLOODY T-SHIRT RECOVERED FROM THE SCENE, WERE NOT PROBATIVE OF ANY DISPUTED ISSUE AND WERE HIGHLY PREJUDICIAL. (Not raised below)
THE TRIAL COURT'S SENTENCING ANALYSIS WAS INADEQUATE AND [DEFENDANT]'S SENTENCE WAS EXCESSIVE.
A. The Trial Court Erred In Finding Aggravating Factor #2 Because The Victim's Death Is an Essential Element of Murder.
B. The Court Should Have Found Mitigating Factor #3.
[DEFENDANT]'S 35-YEAR PAROLE DISQUALIFIER IS LAWFUL AND CANNOT BE INCREASED ON REMAND.
The State has cross-appealed. It argues that the sentence imposed was illegal because the period of parole ineligibility did not comply with the mandatory requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA).
We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction for murder. We vacate the sentence imposed and remand the ...