On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Approved for Publication March 3, 1997. As Corrected May 8, 1997.
Before Judges Dreier, Wefing and Newman. The opinion of the court was delivered by Dreier, P.j.a.d.
The opinion of the court was delivered by: Dreier
The opinion of the court was delivered by DREIER, P.J.A.D.
Defendants Carlos Colon and Benny Rivera appeal from their various convictions after a joint trial arising out of their involvement in a November 21, 1992 fight and shooting outside a Hoboken nightclub. We consolidate their appeals for the purpose of this opinion.
After a seven-day trial, the jury found both defendants guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); fourth-degree aggravated assault, N.J.S.A. 2C:121b(3) (count five); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts seven and nine); and two counts of third-degree unlawful possession of a weapon (counts eight and ten), N.J.S.A. 2C:39-5b. The jury also found Colon guilty of simple assault as a lesser-included offense of aggravated assault (count six). The jury acquitted both defendants on counts of first-degree attempted murder, second-degree aggravated assault, third-degree aggravated assault, and fourth-degree aggravated assault. Both defendants additionally pled guilty to contempt, N.J.S.A. 2C:29-9, for having contact with a juror involved in the trial. The State has cross-appealed to challenge the court's merger of defendants' convictions for unlawful possession of a weapon with the convictions for second-degree aggravated assault.
The Judge merged the third-degree aggravated assault conviction and the two unlawful purpose offense convictions into the second-degree aggravated assault conviction, and sentenced Colon to a seven-year term with a three-year parole disqualifier and Rivera to an eight-year term with a four-year parole disqualifier. For the two unlawful possession of a weapon offenses, each defendant received two concurrent four-year terms. For the simple assault conviction (as a lesser-included offense of aggravated assault), Colon was sentenced to a concurrent thirty-day term. For the contempt conviction Colon received a concurrent nine-month term, and Rivera received a concurrent twelve-month term. Colon was fined $1650 ($1350 according to the judgment), and Rivera was fined $4500 ($1500 according to the judgment). The usual VCCB penalties and SNSF penalties were also imposed.
[The facts have been abridged from the filed opinion for publication of one point raised by Rivera. The text has also been edited.]
At trial, there was extensive testimony concerning the causes and nature of a fight where Colon was beaten by a group of patrons from the bar where all had spent the evening. After a brief interaction inside the bar, all parties to the fight left the bar. Once outside, a punch was thrown and the fight broke out.
The witnesses were unsure who threw the first punch. The scene was described as "mayhem," "a free for all;" "really hectic, people fighting here, people fighting there." Colon was hit, the victim was hit, and then Colon and the victim began hitting each other. The victim ended up on top of Colon, and other people, all from a group from Paterson, were hitting Colon. At this point, Colon started to cover his head with his hands and jacket. According to the victim, he too continued to hit Colon after Colon had stopped punching back and started covering himself, and hit Colon for a total of approximately two or three minutes. One participant testified that when he was hitting Colon he kept his eye on Colon's hand, which was in his jacket on his holster. *fn1 He estimated that he hit Colon for less than a minute, and stated that he was not beating Colon severely because "too many people were in there."
After returning from breaking up another fight, the bar's bouncer, Anthony Forbes, saw the fight taking place on the ground near the outside wall of the club involving the victim, Colon, and other people. Forbes knew Colon from the area, and so he immediately tried to help Colon by pulling the victim off of him. *fn2 A few seconds after Forbes grabbed and held the victim, who was still kicking Colon, someone put an arm three-quarters of the way over Forbes's hunched left shoulder (so that the bicep was even with Forbes's face and the hand was ahead of his face), fired a shot, and hit the victim. Forbes could see enough of the shooter's arm to see that he or she was wearing a "multicolored jacket." According to several witnesses, including Colon, Rivera was wearing a multicolored jacket and purple pants. After hearing a second shot, Forbes let go of the victim and ran.
The victim and two other participants in the fighting each stated that they were sure that Colon was not the shooter. The victim testified that, while still punching Colon and being hit by people around him, he heard gunshots coming from behind him, and that out of the corner of his eye he saw a spark "like a bullet hitting the ground...." Frank Irizarry testified that, as he was hitting Colon, he heard two or three gunshots, looked up and saw sparks out of the corner of his eye, and saw Rivera looking at the fight and standing immediately between the sparks and the fight. Irizarry did not, however, see a gun in Rivera's hand, *fn3 and he was unsure if anyone was standing on either side of Rivera. Sergio DeLeon testified that when he heard two gunshots, he looked up and saw two flashes, but did not see who shot the gun. He did see Rivera running from the scene. Thirty seconds later he saw Marco Soto and the victim running in the same direction. He saw three or four people in the immediate area from where he believed the gunshots came, but could describe only Rivera. All three men testified that they continued to hit Colon and to be hit even after hearing the shots, until they were either pulled off Colon or heard police sirens.
Two other witnesses, not participants in the fighting, testified regarding actually seeing Rivera with a gun. One of them, Renzo Flores, stated that he saw sparks or flashes, looked up, and saw them coming from a chrome-colored gun Rivera was using to shoot at the crowd. He testified that Rivera was fifteen to twenty feet away from him, standing near the sidewalk towards the street. When confronted with an earlier statement he made to the police that Rivera was standing right against the wall of the club, he stated that it was early, everyone was tired, and "everything went so fast." After the shooting, the participants fled the scene.
After the police arrived, someone directed them towards Colon and Rivera as the ones responsible for the shooting. Colon was arrested across the street from the bar, and Rivera was arrested less than half a block away ...