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State v. Fuller12/31/2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2002
Tried to a jury, defendant was convicted in Essex County of first-degree armed robbery, N.J.S.A. 2C:15-1, and fourth-degree possession of an imitation firearm under circumstances that would lead an observer to believe it was possessed for unlawful purposes, N.J.S.A. 2C:39-4e. The weapons offense was merged with the robbery. Defendant was sentenced to ten years imprisonment. After the trial, and while pending sentencing, defendant pled guilty to another Essex County indictment for third-degree receiving stolen property, N.J.S.A. 2C:20-7, and second-degree eluding the police, N.J.S.A. 2C:29-2b, pursuant to a plea agreement recommending sentences of four years imprisonment for each offense, concurrent to each other but consecutive to sentence imposed on the earlier indictment. Defendant was sentenced on both indictments on the same date. The judge followed the recommendation in the plea agreement (which included sentencing the second-degree eluding as though it were a third-degree offense, pursuant to N.J.S.A. 2C:44- 1f(2)). Defendant's aggregate sentence was fourteen years. Appropriate monetary sanctions were also imposed.
On appeal, defendant contends:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL SINCE THE PROSECUTOR EXERCISED HIS PEREMPTORY CHALLENGES ON CONSTITUTIONALLY-IMPERMISSIBLE GROUNDS, THEREBY DENYING TO THE DEFENDANT HIS RIGHT TO EQUAL PROTECTION AS WELL AS A FAIR TRIAL.
POINT II THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We reject these contentions and affirm.
Because the issues raised on appeal are limited to the jury selection procedures and the sentence, we need not recount the facts in detail. The robbery occurred when defendant entered a take-out restaurant, pointed a gun at the proprietor, and demanded money. The proprietor, believing it was a real gun, became frightened and went to the cash register to comply with defendant's demand. Upon further observation, however, the proprietor realized it was a water gun, and he wrested it from defendant. He then called the police. Defendant testified he was only playing a practical joke on the proprietor, a contention the jury obviously did not believe. Although not real, the gun meets the definition of a "deadly weapon" for purposes of robbery, pursuant to N.J.S.A. 2C:11-1c.
In this robbery trial, the prosecutor was entitled to exercise twelve peremptory challenges and defendant was entitled to twenty. N.J.S.A. 2B:23-13b; R. 1:8-3(d). The prosecutor exercised six; the defense exercised five. Defendant is African-American. Five of the six peremptory challenges exercised by the prosecutor were directed at African-American jurors. Defense counsel objected on two occasions during the jury selection process, and again raised the issue in a new trial motion prior to sentencing. Defendant argues the prosecutor violated his right to equal protection of the laws and to a trial by a jury drawn from a representative cross- section of the community by using peremptory challenges to exclude five African-American jurors.
Our Supreme Court has held "that Article I, paragraphs 5, 9, and 10 of the New Jersey Constitution forbid a prosecutor to exercise peremptory challenges to remove potential petit jurors who are members of a cognizable group on the basis of their presumed group bias; the State, however, may peremptorily challenge such venirepersons on grounds of situation-specific bias." State v. Gilmore, 103 N.J. 508, 517 (1986). Without question, members of the black race constitute a cognizable group for these pur
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