NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4615-05T44615-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALIMEAN TURAY,

Defendant-Appellant.

______________________________

Submitted February 7, 2008 - Decided

Before Judges Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

05-05-0729.

Ruth A. Harrigan, attorney for appellant.

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent (Joel S. Silberman, Assistant

Prosecutor, on the brief).

Alimean Turay, appellant pro se, on the supplemental

brief.

PER CURIAM

Tried by a jury, defendant Alimean Turay, was convicted of second-degree robbery, N.J.S.A. 2C:15-1. He was sentenced, as a persistent offender, N.J.S.A. 2C:44-3(a), to an extended term of fifteen years subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fees and penalties were also imposed. Defendant appeals. For reasons that follow, we remand for resentencing in accordance with State v. Pierce, 188 N.J. 155 (2006), and affirm the judgment of conviction in all other respects.

According to the State's proofs, on November 10, 2004, at about 3:50 p.m., fourteen-year old Yusef Mathis was walking home with his bike on Harrison Avenue in Jersey City. As he bent over to fix his pants, defendant grabbed him and dragged him into the hallway of a nearby apartment building. Defendant ordered Yusef to lay down on the stairs while he pulled out a gun and searched the boy's pockets. Defendant threatened to shoot Yusef if he did not find any money, but he eventually located twenty-five dollars. Defendant took the money, as well as Yusef's cell phone and bike.

While the robbery was occurring, Therashia Robinson, Yusef's cousin who rents a first floor apartment in the building, opened her door and saw defendant standing over a boy lying face down. Although she could not see the boy, Robinson recognized defendant, whom she had known for twelve years and who was the cousin of her daughter's father. She asked him what he was doing to the boy, whereupon defendant pointed a handgun at her and ordered her to get back inside her apartment. After she complied, defendant then ordered Yusef to take off his clothes and go upstairs. As soon as Robinson heard the outer door close, she went into the hall where she heard Yusef from the top of the dark stairway yell "It's me." Robinson then called Yusef's mother and the police.

Both Yusef and Robinson gave police defendant's name and description. They also gave separate statements to the police on November 17, 2004 and, on that same day, both identified defendant from a photo array. Crediting the State's proofs, the jury convicted defendant of second-degree robbery, a lesser included offense of the first-degree armed robbery charged in the indictment.

On appeal, defendant, through counsel, raises the following issues:

I. THE PROSECUTOR'S COMMENTS DURING SUMMATION CLEARLY EXCEEDED THE BOUNDS OF PROPRIETY AND REQUIRE A REVERSAL OF DEFENDANT'S CONVICTION. (PARTIALLY RAISED BELOW).

II. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW).

III. THE COURT ERRED IN IMPOSING AN EXTENDED TERM AND NERA WAS IMPROPERLY IMPOSED ON AN EXTENDED TERM SENTENCE.

In a supplemental brief, defendant pro se raises the following issue:

I. TRIAL COUNSELOR RENDERED INEFFECTIVE

ASSISTANCE OF REPRESENTATION WHEN HE

REFUSED TO FILE ANY PRETRIAL MOTIONS AS APPELLANT HAD REQUESTED AND FAILED TO INVESTIGATE AVENUES OF DEFENSE THAT WOULD HAVE RESULTED IN A DIFFERENT OUTCOME THAN THAT OF THE TRIAL.

(i)

Defendant ascribes reversible error to two comments by the prosecutor on summation. The first, wherein the prosecutor pointed out discrepancies in the description of the weapon used by defendant in the robbery, is challenged as improperly ridiculing defense counsel. The second, wherein the prosecutor rhetorically asked the jury to consider Robinson's motivation to tell the truth, is said to have improperly bolstered the State's witness' credibility. We disagree with defendant on both counts.

In describing the weapon used to commit the robbery, the prosecutor commented:

Now, counsel would have you believe that the testimony indicated that Mr. Mathis was pistol whipped by the defendant with the gun. Now, I ask you to use your recollection here. Was that the testimony? I don't believe so, ladies and gentlemen. Mr. Mathis testified that he was struck with the gun in the back of the head. He didn't say how hard he was struck. He didn't testify that he was struck repeatedly. He said he was struck once. And although he identified the gun as being a big black gun, it was a handgun. Counsel describes it as being a sawed-off shotgun that he was constantly beat over the head with. Was that the testimony, ladies and gentlemen?

These remarks constituted proper commentary on the evidence of record and fall well within the considerable leeway afforded counsel in closing statements. State v. Timmendequas, 161 N.J. 515, 587 (1999). We discern in them no capacity to prejudice defendant's defense. State v. Frost, 158 N.J. 76, 83 (1999). To the extent they may be considered a call to the jury to ignore defense counsel's argument, the trial judge immediately instructed the jury to disregard the prosecutor's last remark and the court's admonition adequately remedied whatever excess may have been ascribed to that remark. State v. Papasavvas, 163 N.J. 565 (2000).

The second comment challenged on appeal, but not raised below, concerns Robinson's motivation for testifying as an eyewitness:

Now, also, with respect to Mrs. Robinson, she also very candidly told you about her prior conviction. She also told you that she served a five-year state prison sentence and that she had just completed parole. [Defense counsel] would suggest that she's trying to get back at her ex, her baby's father, through his cousin and that's why she's here today making up these allegations to get back at her ex-boyfriend. Does that make sense to you, ladies and gentlemen?

Here is a woman who just finished serving parole. Why would she subject herself to any further charges or any more trouble with the law by making up these charges and coming in and falsely testifying before you, ladies and gentlemen?

This comment speaks for itself. Clearly in response to defense counsel's attack on the witness' credibility based on Robinson's prior criminal history, the prosecutor was simply asking the jury to consider other related factors in its evaluation of the truthfulness of the witness' testimony. Indeed, the prosecutor need not sit idly by as the State's witness is being attacked, State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000), and is entitled to reply appropriately. State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991). Here, the prosecutor's comments neither expressed a personal belief in defendant's guilt, nor implied a special knowledge outside the proofs presented. State v. Farrell, 61 N.J. 99, 103 (1972). They were not error, much less plain error clearly capable of producing an unjust result. R. 2:10-2; State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997).

(ii)

Defendant next contends the verdict of second-degree robbery was against the weight of the evidence. Since defendant never moved below for a new trial on this ground, the issue is not cognizable on appeal. R. 2:10-1; State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993).

But even if we proceed to the merits in the interest of justice, defendant's contention fails. In considering whether a jury verdict is against the weight of the evidence, our task is to decide whether "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We must sift through the evidence "to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982). But we may not overturn the verdict "merely because [the jury] might have found otherwise upon the same evidence." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985). Appellate intervention is warranted only to correct an "injustice resulting from a plain and obvious failure of the jury to perform its function." Ibid.

Here, both the victim and the eyewitness Robinson identified defendant. Indeed, Robinson had known defendant for twelve years. Moreover, Robinson's eyewitness account corroborates the victim's version and clearly establishes that force was used by defendant in perpetuating the theft of money and goods from his fourteen-year old victim. N.J.S.A. 2C:15-1. Where, as here, the jury's verdict is grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced. State v. Haines, 20 N.J. 438, 446-47 (1956). We are satisfied that the jury here was neither mistaken nor prejudiced.

(iii)

As for defendant's pro se claim of ineffective assistance of counsel, it is clear that where, as here, resolution of the issue depends on facts dehors the record, direct appeal does not provide an appropriate remedy and the claim of ineffective assistance of counsel is reserved instead for post-appeal, post-conviction disposition. R. 3:22-3; R. 3:22-4; R. 3:22-10; State v. Preciose, 129 N.J. 451, 460 (1992). We, therefore, decline to consider this issue as well, recognizing that it is preserved for post-conviction relief review.

(iv)

Lastly, defendant claims error in the imposition of both a discretionary extended term sentence and the NERA parole bar thereon. Undisputably, NERA applies to a second-degree robbery offense, N.J.S.A. 2C:43-7.2(d)(9), and defendant was eligible to be sentenced as a persistent offender, given his prior criminal history. N.J.S.A. 2C:44-3(a). Our review of the record also persuades us that there is no warrant to interfere with the decision to sentence defendant as a persistent offender with one exception. We note that defendant was sentenced on March 14, 2006 and his notice of appeal was filed on May 11, 2006, before the decision in State v. Pierce, 188 N.J. 155 (2006). There, the Court held that once the eligibility requirements for sentencing under the persistent offender statute are met, the maximum sentence to which defendant may be subject is the top of the extended-term range and the lowest sentence begins at the minimum of the ordinary-term range. Id. at 169. Thus, defendant is entitled to a remand for reconsideration of his sentence within the broadened sentencing range articulated by the Pierce Court. Defendant's other arguments of excessiveness of sentence may be readdressed to the sentencing judge. If further review is warranted, defendant will have that opportunity subsequently.

The judgment of conviction is affirmed, and the matter is remanded to the Law Division for resentencing in accordance with this opinion.

Defendant was acquitted of the remaining counts of the indictment charging two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and two counts of aggravated assault, N.J.S.A. 2C:12-1(b)(4).

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A-4615-05T4

March 6, 2008