STATE OF NEW JERSEY v. TYKIM KEMP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5911-03T45911-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYKIM KEMP,

Defendant-Appellant.

________________________________

 

Argued: September 19, 2006 - Decided November 2, 2006

Before Judges Kestin and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 03-03-0823.

Lon Taylor, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Taylor, of counsel and on the brief).

Kenneth P. Ply, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Mr. Ply, of counsel and on the brief).

PER CURIAM

Defendant was charged in six counts with murder, N.J.S.A. 2C:11-3a(1),(2); felony-murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree possession of a weapon, a knife, N.J.S.A. 2C:39-5d; third-degree possession of the weapon for unlawful purpose, N.J.S.A. 2C:39-4d; and, with an unknown and unindicted co-conspirator, second-degree conspiracy, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1. Following an initial trial, the jury acquitted defendant of the murder and weapon charges, but could not arrive at a verdict on the other counts. A second trial resulted in a guilty verdict on those remaining charges.

In sentencing defendant, the trial court merged the robbery and conspiracy convictions into the felony-murder conviction and imposed a thirty-year term of imprisonment without parole eligibility. Appropriate assessments, fees and penalties were ordered.

On appeal, defendant raises the following issues:

POINT I SINCE THE COURT IMPROPERLY ADMITTED BOOTSTRAPPING EVIDENCE PERTAINING TO A PRIOR UNSOLVED ROBBERY AS WELL AS DEFENDANT'S VAGUE STATEMENTS ABOUT PRIOR ROBBERIES TO SHOW THE ILLUSORY ISSUE OF MOTIVE, DEFENDANT'S CONVICTIONS MUST BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

POINT II POLICE TESTIMONY ABOUT SPECIFIC HEARSAY REASONS WHY THEY BELIEVED DEFENDANT WAS A SUSPECT REQUIRES THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL.

POINT III POLICE TESTIMONY THAT DEFENDANT'S INCRIMINATING STATEMENT WAS TRUE REQUIRES THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL. (Partially raised below)

We affirm.

Our review of the record in the light of the arguments advanced by the parties and prevailing standards of law discloses that none of these argument has sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We make the following observations, however.

Defendant had given a statement to the police in which he admitted to other robberies with a companion on the night in question, preceding the attempted robbery of the victim in this matter and the scuffle that led to the victim's death. In his statement, defendant admitted to having had a knife in his possession earlier, but asserted that he had given it to his companion before the confrontation with the victim began. At trial, defendant denied the details of his statement, claiming they had been manufactured by the police and that he had signed the statement believing it to be a complaint that he had been attacked and injured while waiting for a bus.

The trial judge rejected a challenge to the admissibility of the statement, ruling that it bore upon issues the jury could consider, see N.J.R.E. 404(b), and that its probative value was not unduly outweighed by any prejudice defendant might suffer from its introduction. See, e.g., State v. G.V., 162 N.J. 252, 257-58 (2000); State v. Marrero, 148 N.J. 469, 482-84 (1997); State v. Cofield, 127 N.J. 328, 337-38 (1992). The judge also charged the jury appropriately on the limited use to which such evidence could be put. Thus, the credibility issue was well-framed for the jury and defendant was protected against improper use of the statement he had made. Sufficient other evidence implicating defendant in the crimes charged, emanating from witnesses subject to cross-examination, was also before the jury. Thus, the convictions cannot be said to have been based on hearsay evidence or impermissible police opinion testimony to an extent warranting our intervention.

Affirmed.

 

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A-5911-03T4

November 2, 2006