STATE OF NEW JERSEY v. MUSTAFA A. BRAXTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3932-06T43932-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MUSTAFA A. BRAXTON,

Defendant-Appellant.

__________________________________________________

 

Submitted June 2, 2008 - Decided

Before Judges A.A. Rodr guez and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1374.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald T. Thelander, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Lisa M. Dudzinski, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial, defendant was convicted of first-degree 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), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). He was sentenced on the robbery conviction to a ten-year prison term, subject to an 85% period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The conviction for possession of a weapon for an unlawful purpose was merged with the robbery conviction for sentencing purposes, and the judge sentenced defendant to a three-year term on the conviction for possession of a weapon without a permit, which was ordered to run concurrently with the term imposed on the robbery conviction.

Defendant appealed the judgment of conviction, presenting only the following argument for our consideration:

THE DEFENDANT'S CONVICTIONS MUST BE REVERSED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (Not Raised Below).

We are compelled to find that this argument is not cognizable on appeal.

Defendant concedes that he did not move in the trial court for a new trial. As a result, we are barred by R. 2:10-1 from considering whether the jury's verdict was against the weight of the evidence. See, e.g., State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). Notwithstanding, defendant argues that we should relax this rule in order to prevent a miscarriage of justice, citing R. 1:1-2. Defendant, however, cites no authority to support his contention that R. 1:1-2 may be utilized to permit a relaxation of R. 2:10-1. Indeed, we are aware of no such interpretation of these rules and observe that, in fact, in the civil context, we have held that R. 2:10-2 may not be so relaxed. See Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 (App. Div. 1998). And the fact that we have, at times -- after recognizing and applying the bar of R. 2:10-1 -- explained why a particular argument regarding the weight of the evidence would have failed if reviewable, see State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006); State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993), does not suggest the existence of an exception to the bar imposed by R. 2:10-2.

Lastly, we observe that, in a footnote in a civil case, we mentioned in dictum that the application of the bar contained in R. 2:10-1 in a criminal case "may implicate constitutional rights." Fiore, supra, 311 N.J. Super. at 363 n.1. To the extent there is any validity in that dictum, we note that defendant has not raised the constitutionality of R. 2:10-1, and, for that reason, we conclude it would be jurisprudentially unsound to consider the constitutionality of this rule in the matter at hand. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

For these reasons, rather than express our own view of how we would have likely ruled if the trial judge had denied a motion for a new trial that was never asserted, we deem it more appropriate to withhold the expression of any such dictum, particularly in light of the possibility that the factual basis for defendant's argument may, in the future, be pressed by way of a petition for post-conviction relief. In that circumstance, it would not be desirable for our views of the factual contentions to bear upon the trial court's consideration of those contentions in any such subsequent proceedings.

Affirmed.

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A-3932-06T4

June 17, 2008