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State v. Pettis

Superior Court of New Jersey, Appellate Division

December 27, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JASON PETTIS, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2013.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-08-1370.

Joseph E. Krakora, Public Defender, attorney (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).

Before Judges Reisner, Ostrer and Carroll.

PER CURIAM.

Following an October 2011 jury trial, defendant Jason Pettis was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), as a lesser-included offense of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11- 3a(1) or (2) (count one); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). In a second trial, [1] the same jury convicted defendant of second-degree possession of a weapon by a prohibited person, N.J.S.A. 2C:39-7b.

On December 22, 2011, defendant was sentenced to an extended term of fifteen years imprisonment on the aggravated assault charge, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court merged count two with count three, and imposed a concurrent seven-year prison term. A consecutive five-year sentence with no parole eligibility was imposed on the certain persons not to have weapons offense. Therefore, defendant was sentenced to an aggregate twenty-year term of imprisonment, with seventeen years and nine months of parole ineligibility.

Defendant appeals from the conviction and sentence. He presents the following points for our consideration:

I. THE ADMISSION OF EVIDENCE THAT DEFENDANT DID NOT COMPLY WITH A STATE "PROGRAM" AND LEFT NEW JERSEY IN VIOLATION OF THAT PROGRAM --PURPORTEDLY TO SHOW FLIGHT AND CONSCIOUSNESS OF GUILT -- WAS IRRELEVANT AND, IN ANY CASE, OVERLY PREJUDICIAL, MANDATING THE REVERSAL OF DEFENDANT'S CONVICTIONS.
II. THE ADMISSION OF A RECORDING OF A THREE-WAY CALL TO PETTIS AT [THE] JAIL DID NOT SUPPORT AN INFERENCE OF WITNESS TAMPERING, AND IN ANY CASE WAS OVERLY PREJUDICIAL, ESPECIALLY SINCE DEFENDANT DID NOT INITIATE THE CALL AND THE SUBJECT WITNESS HAD UNEQUIVOCALLY TESTIFIED AGAINST HIM.
III. REFERENCE TO DEFENDANT AS "A CRIP FROM AROUND THE AREA, " WAS HIGHLY PREJUDICIAL, MANDATING THAT COUNSEL'S REQUEST FOR A MISTRIAL SHOULD HAVE BEEN GRANTED.
IV. THE AGGREGATE 20-YEAR SENTENCE OF IMPRISONMENT FOR AGGRAVATED ASSAULT AND THE CERTAIN PERSONS WEAPONS CHARGE WAS EXCESSIVE.

For the reasons that follow, we affirm defendant's conviction. While we do not find defendant's sentence excessive, we remand for correction of a sentencing error with regard to merger of offenses.

I.

We glean the following facts from the record. Defendant was charged with the May 22, 2009 shooting of Jarred Campfield. At trial, Campfield testified that he knew defendant because he was previously involved in a relationship with the mother of defendant's child, and that some "hostility" existed between the two men. According to Campfield, approximately five or six days before the shooting defendant had approached him on the street "and asked me about something that I allegedly said about him, " and stated "we're going to handle this right now." Campfield observed defendant reach into his pocket, and thought he was going for a weapon, but later determined it was a can of soda. Campfield proceeded to "beat him up" and "slammed him on his head a couple of times. Kicked him in his face." The incident occurred at the intersection of Van Dyke Avenue and Wright Place, in ...


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