STATE OF NEW JERSEY v. COREY ROBERTSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3623-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COREY ROBERTSON, a/k/a LAMAR

BROWN, PHILLIP JOHNSON,

Defendant-Appellant.

__________________________________________

August 4, 2011

Submitted May 31, 2011 Decided

Before Judges A. A. Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-01-0052.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial in December 2008, defendant Corey Robertson was convicted of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. On October 28, 2009,Judge Peter Ryan sentenced defendant to concurrent terms aggregating eight years with a three-year period of parole ineligibility. This sentence was to run consecutively to the term defendant was then serving on an unrelated conviction. We affirm.

The pertinent trial evidence may be summarized as follows. On July 30, 2006, Aaron Everson was at a party-like gathering in a vacant lot in Newark. At 1:30 a.m., a melee occurred and Everson was fatally shot. Eyewitness Muhammed Muhammed testified that defendant was waving a firearm and shooting it in the air. At some point, defendant fired into the crowd. After Everson was shot, defendant left the scene by car.

Lula Everson, the victim's sister, testified that she saw defendant shoot her brother. She and Muhammed were the only State's witnesses.

Defendant appeals contending:

THE TRIAL COURT'S FAILURE TO MOLD THE JURY INSTRUCTIONS ON POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not Raised Below).

We disagree.

Defendant argues that the judge failed to adequately instruct the jury on defendant's intended purpose to use the firearm unlawfully, relying upon State v. Petties, 130 N.J. 310 (1995). There the Court held that "the trial judge should explain to the jury that the criminal purpose or state of mind may 'exist at whatever time the State claims that the possessory offense took place,' and relate the specific unlawful purpose charged to the facts of the case." Id. at 321 (quotation omitted). Here, the judge charged the jury that "the State contends that the unlawful purpose in possessing a firearm was murder and/or aggravated assault[,]" adding: "The unlawful purpose alleged by the State may be inferred from all that was said or done and from all the surrounding circumstances of this case." Under the circumstances, we perceive no plain error in this instruction.

Defendant also contends:

THE EXCESSIVE TIME DELAY OF ONE YEAR BETWEEN DEFENDANT'S CONVICTION AND HIS SENTENCE VIOLATED DEFENDANT'S RIGHT TO A SPEEDY TRIAL AND TO DUE PROCESS. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I, PAR. 10; R. 3:21-4.

We disagree.

The fact that there was a ten-month delay between trial and sentencing in this case does not give rise to a speedy trial claim. Defendant does not assert an inordinate delay between his arrest and trial. At sentencing, he received credit for all time served in custody. Therefore, there was no prejudice to defendant by the delay. This case is distinguishable on the facts from State v. Phillips, 176 N.J. Super. 495 (App. Div. 1980), upon which defendant relies. While defendant may not have received a "benefit" from the delay, neither was he deprived of any rights.

Finally, defendant contends:

THE SENTENCE IMPOSED BY THE TRIAL COURT WITHOUT AN UNDERLYING BASIS FOR CONSECUTIVE TERMS CONSTITUTES AN ILLEGAL SENTENCE (Not Raised Below).

This argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The sentences for the convictions in this trial run concurrently to each other. These terms are consecutive to an unrelated conviction. "There can be no free crimes in a system for which the punishment shall fit the crime." State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).