STATE OF NEW JERSEY v. BASIYR A. POWELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2145-04T42145-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BASIYR A. POWELL,

Defendant-Appellant.

________________________________

 

Submitted: September 12, 2006 - Decided September 19, 2006

Before Judges Kestin and Graves.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 02-10-3571.

Yvonne Smith Segars, Public Defender, attorney for appellant (Roger L. Camacho, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

A jury convicted defendant of first-degree robbery, N.J.S.A. 2C:15-1, second-degree possession of a firearm for unlawful purpose, N.J.S.A. 2C:39-4a, and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. The trial court sentenced defendant, on the first-degree crime, to a seventeen-year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, i.e., with parole ineligibility for 85% of the term and a five-year period of post-release parole supervision, consecutive to an earlier sentence. The weapon convictions were merged and a concurrent prison term of five years was imposed therefor. Appropriate statutorily mandated assessments, fees and penalties were also ordered.

The charges arose from an armed robbery of a convenience store. The State proffered the testimony of the victim, a police officer, and two eye witnesses regarding defendant's commission of the crimes.

Counsel, on defendant's behalf, raises the following issues on appeal:

POINT I THE TRIAL COURT REVERSIBLY ERRED IN PERMITTING THE STORE OWNER WHO ADMITTED THAT SHE DID NOT SEE THE ROBBER'S FACE TO MAKE AN UNDULY SUGGESTIVE IN-COURT IDENTIFICATION OF POWELL OVER ONE YEAR AFTER THE INCIDENT BASED SOLELY UPON HIS HANDS WHICH SHE CONCEDED HAD NO DISTINCTIVE FEATURES SUCH AS TATOOS OR SCARS. (U.S. Const. Amends VI and XIV; N.J. Const. (1947) Art. I, Para. 10)

POINT II THE INCLUSION OF THE STORE OWNER'S TESTIMONY REGARDING GENERALLY THAT ONE COULD SEE INTO THE STORE AT NIGHT WHEN THE LIGHTS WERE ON SHOULD HAVE BEEN EXCLUDED FOR LACK OF A PROPER FOUNDATION AND LACK OF RELEVANCE TO CONDITIONS ON THE NIGHT OF THE INCIDENT. (U.S. Const. Amends VI and XIV; N.J. Const. (1947) Art. I, Para. 10)

POINT III THE PHOTOGRAPHS OF THE FRONT OF THE STORE TAKEN BY THE PROSECUTOR'S INVESTIGATOR DURING THE DAY, ONE DAY BEFORE THE SECOND TRIAL DATE WHICH WAS MORE THAN ONE YEAR AFTER THE INCIDENT WHICH OCCURRED AT NIGHT SHOULD HAVE BEEN EXCLUDED AS IRRELEVANT AND AS VIOLATIVE OF N.J.R.E. 403. (U.S. Const. Amends VI and XIV; N.J. Const. (1947) Art. I, Para. 10)

POINT IV EVIDENCE OF OTHER CRIMES INTRODUCED BY DETECTIVE WITKOWSKI SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 4044(b).

POINT V THE TRIAL COURT'S IDENTIFICATION CHARGE IMPROPERLY USURPED THE JURY'S FACT-FINDING FUNCTION AND VIOLATED POWELL'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY. (NOT RAISED BELOW) (U.S. Const. Amends VI and XIV; N.J. Const. (1947) Art. I, Para. 10)

POINT VI POWELL'S SEVENTEEN-YEAR SENTENCE WITH AN 85% PAROLE INELIGIBILITY UNDER THE NO EARLY RELEASE ACT (NERA) WAS UNCONSTITUTIONAL BECAUSE THE FACT-FINDING WAS PERFORMED BY THE COURT, NOT THE JURY, IN VIOLATION OF POWELL'S CONSTITUTIONAL RIGHTS TO CONFRONT WITNESSES AGAINST HIM AND TO AN IMPARTIAL JURY TRIAL. (U.S. Const. Amends VI; N.J. Const. (1947) Art. I, Para. 10)

POINT VII POWELL'S SENTENCES WERE ILLEGAL AND MANIFESTLY EXCESSIVE.

Defendant, in a supplemental brief filed pro se, raises the following issues:

POINT I THE VIOLATION OF MR. BASIYR POWELL'S [DUE] PROCESS OF LAW FOR FAILURE TO ISSUE A CORRECT ARREST WARRANT.

POINT II THE TRIAL COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY DENIED MR. BASIYR POWELL HIS RIGHT TO A FAIR TRIAL.

(A) FOR INSTRUCTING THE JURORS TO NOT USE THEIR OWN DECISION IN THE CASE.

(B) THE FAILURE TO CHARGE THE LESSER INCLUDED OFFENSE OF CRIMINAL RESTRAINT.

POINT III AS THE GRAND JURY FAILED TO INDICT MR. BASIYR POWELL FOR FIRST DEGREE ROBBERY, THE TRIAL COURT'S SUBMISSION OF SUCH CHARGE TO THE JURY IS REVERSIBLE ERROR. (N.J. CONSTITUTION ART 1, PAR 8)

Our perusal of the record in the light of the arguments advanced by the parties and prevailing legal standards discloses that none of the issues addressed to the convictions have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We note specifically that the argument concerning a defect in the indictment is not supported by the record; and that the jury's verdict was amply supported by credible evidence regarding defendant's conduct and his identity in the form of testimony from the victim and other persons who witnessed the events. See Carrino v. Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 596-601 (1977); State v. Marks, 201 N.J. Super. 514, 537 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986).

Because the term of imprisonment imposed was above the formerly presumptive term, we remand for the trial court's reconsideration of the sentence on the basis of currently applicable considerations. See State v. Thomas, 188 N.J. 137, 152 (2006); State v. Pierce, 188 N.J. 155 (2006); State v. Natale, 184 N.J. 458 (2005); State v. Abdullah, 184 N.J. 497, 506 n.2 (2005).

The convictions are affirmed. The matter is remanded for reconsideration of the sentence.

 

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A-2145-04T4

September 19, 2006