On appeal from Superior Court, Law Division, Atlantic County.
Before Judges Landau, Conley and Newman.
The opinion of the court was delivered by
Defendant, Andre Saunders, was indicted and tried before an Atlantic County jury on charges of murder, N.J.S.A. 2C:11-3a(1), 3a(2)(count one); second degree attempt to cause serious bodily injury (aggravated assault), N.J.S.A. 2C:12-1b(1)(count two); third degree attempt to cause bodily injury with a deadly weapon (aggravated assault), N.J.S.A. 2C:12-1b(2)(count three); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a(count four); fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4)(counts five, six, seven, eight and nine); and unlawful possession of a handgun, N.J.S.A. 2C:39-5b(count ten).
On September 26, 1991, the jury acquitted defendant of murder and of the aggravated assault counts charging attempt to cause serious bodily injury, or bodily injury with use of a deadly weapon, to certain named persons other than the victim. Saunders was found guilty of aggravated manslaughter, a lesser included offense of murder; two counts of simple assault, as the lesser included offenses of the second and third degree aggravated assault attempt counts two and three; one count of possession of a handgun for an unlawful purpose; one count of unlawful possession of a handgun; and the five counts of fourth degree aggravated assault based upon "knowingly under circumstances manifesting extreme indifference to the value of human life" pointing a firearm at another, whether or not it was believed to be loaded.
Saunders was sentenced to the custody of the Commissioner of the Department of Corrections for thirty years with fifteen years of parole ineligibility on the aggravated manslaughter conviction. The simple assault counts, two and three, were merged with other counts. Saunders received a concurrent sentence of ten years with a five year parole disqualifier on the possession of handgun for unlawful purpose, count four; and combined sentences of eighteen months without parole on each of the counts numbered five through ten. He was also sentenced to a concurrent four year term on a separate violation of probation conviction. VCCB penalties were imposed.
On appeal Saunders asserts that the trial Judge erred prejudicially by failing, over objection, to differentiate adequately between aggravated and reckless manslaughter in the jury instructions, and that this problem was compounded, over objection, by the omission of a reckless manslaughter charge when the Judge repeated the murder and aggravated manslaughter instructions in response to jury questions raised during their deliberations. Saunders also contends that the maximum possible sentence of thirty years with fifteen years of parole ineligibility, imposed on the aggravated manslaughter count, was excessive.
The convictions under review arise out of a street incident. Saunders, on probation for a prior bribery conviction, exchanged words with an acquaintance about their respective handguns. Shortly thereafter, he pointed a semi-automatic handgun at a group of several young men and fired. The other gun owner, who was in the group, pretended to be shot and fell to the ground, but he was actually unhurt. However, one block away, a four year old boy playing outdoors was hit by the ricochetting bullet. The child died of the wound. Saunders fled the state after the shooting, but ultimately returned to Atlantic City and turned himself in.
During trial, Saunders disclaimed any intention to shoot or injure anyone, said he believed that the gun was unloaded and secured by a safety, but acknowledged that he became frightened when he realized someone had been shot and that he ran away. Although the discarded gun was never found, the caliber of the bullet removed from the victim's stomach was consistent with Saunders's weapon. The bullet's scarring and imbedded foreign matter suggested that it struck the sidewalk before hitting the victim.
Our analysis of the evidence satisfies us that it was sufficient for the jury reasonably to have determined that Saunders intentionally fired the weapon, that the bullet caused the victim's death, that the firing was reckless,*fn1 and that Saunders acted under ...