Before Judges Stern, Wefing and Steinberg.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
These two appeals arise out of the same indictment and were argued together. We, therefore, consolidate them for the purposes of this opinion.
An Essex County Grand Jury returned Indictment No. 3475-10-96, charging defendants with second-degree conspiracy to commit kidnapping, aggravated assault and/or murder, N.J.S.A. 2C:5-2, N.J.S.A. 2C:13-1, N.J.S.A. 2C:12-1(b)(2), and N.J.S.A. 2C:11-3 (count one); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count four); second-degree burglary, N.J.S.A. 2C:18-2 (count five); fourth-degree possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5(d) (count six); third-degree possession of a weapon, a sharp instrument, with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4(d) (count seven); third-degree possession of a handgun without first having obtained a permit to carry, N.J.S.A. 2C:39-5(b) (count eight); and second-degree possession of a handgun with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a) (count nine).*fn1
A jury found defendants guilty of first-degree kidnapping, count two; second-degree aggravated assault, count three; third-degree possession of a weapon for an unlawful purpose, count seven; and second-degree possession of a handgun for an unlawful purpose, count nine. The jury found defendants not guilty on the remaining counts of the indictment.
Each defendant had a prior Graves Act conviction. N.J.S.A. 2C:43-6(a). Accordingly, they were each subject to mandatory extended terms on counts two, three, and nine which are Graves Act offenses. See N.J.S.A. 2C:43-6(c), N.J.S.A. 2C:43-7(c), and N.J.S.A. 2C:44-3(d). The judge merged each defendants' convictions under counts seven and nine into counts two and three and then sentenced each defendant to life imprisonment with twenty years to be served without parole on count two. He also sentenced each defendant to a consecutive term of imprisonment of twenty years, with ten years to be served without parole on count three. The judge also imposed a Safe Neighborhood Services Fund assessment of $75.00 on each count upon each defendant. Finally, he imposed an assessment against each defendant of $500 in favor of the Victims of Crime Compensation Board (VCCB) on count two, and an additional VCCB assessment of $2,000 on count three. Defendants appeal. We affirm, but remand for resentencing.
According to the State's proofs, on June 18, 1996, at approximately 5:30 p.m., Chea Smith, Corey Smith's brother, was shot to death in Newark, New Jersey. Shortly after the shooting, Corey Smith was advised that two individuals with the street names of Drea and Wise had killed Chea. Drea and Wise were friends of Rashon Grundy, who was the victim of the crime involved in these appeals.
Later that evening, Corey Lewis, accompanied by Smith, borrowed a U-Haul truck from Lewis' cousin, James Harris. On June 19, 1996, at approximately 12:30 a.m., the victim was sitting in his living room when he heard a "big boom". Five individuals ran into his house wearing ski masks and carrying guns. According to Grundy, they threatened all the residents in the home and instructed them not to move or make sounds. One of the men pointed a gun at the victim and said, "you coming with us." While the victim was being forcefully removed from his home, a plastic garbage bag was placed over his head and one of the assailants struck him in the head with a gun. They demanded that the victim take them to Wise's home. They took the victim from his home, and put him in the back of the U-Haul.
While in the back of the U-Haul, the victim noticed a broken black lamp lying on the floor of the truck. After the truck was driven a short distance it stopped, and the victim was removed from the truck and taken inside an abandoned apartment building to the third floor, and told to get on his knees. A mask was placed over his head. One of the assailants cut the victim's ear. The victim took off his mask and saw Swint standing by the window. A sheet was placed over the victim's head and one of the assailants kept asking "who killed my brother", "where do Wise live at?", "where do Andre live at?", and "where Andre girlfriend live at?". When he told the assailants he did not know where these people were, the assailants began to torture him. They cut off his ears, cut his back, neck, hand and arm, and shot him above the knee and in the ankle.
When the victim realized that the room was quiet, he was able to struggle down the stairs, out of the building, and managed to get around the corner to his brother's house.
Janyne Morris, who lived with Edward Grundy, the victim's brother, testified that on June 19, 1996, at 2:00 a.m., she was asleep but heard someone tapping on the window. She answered the door and observed the victim crying, screaming, and covered with blood. In the colloquy that preceded her testimony, it was clear that her testimony as to what the victim told her was offered as an excited utterance pursuant to N.J.R.E. 803(c)(2). She then testified, without objection, that the victim said "Rajhon*fn2 and them" caused his injuries.
The State also called Edward Grundy who testified that he was "awakened by [his] girlfriend who said there was something wrong with my brother". He said he jumped up, went into the dining room and observed his brother bleeding and crying. Without objection, he testified that the victim said "Rajhon and them kicked in mommy door". Edward found some clothes to put on and they all went to the car intending to go to the hospital. However, the victim said "[h]e wanted to go to check on my mother and my sisters". At that point, counsel for Swint objected to any further testimony regarding statements made by the victim since too much time had elapsed and there was an insufficient foundation to justify the admission of the testimony under N.J.R.E. 803(c)(2). The judge directed the prosecutor to lay the appropriate foundation for the admission of the testimony.
Edward then again testified that the victim arrived at his house between 1:30 a.m. and 2:00 a.m. crying and bleeding. Edward changed his clothes and they got into the car. The victim was in the home for approximately three minutes. While in the car, blood was running down the victim's face and he told Edward that he was shot in the leg. The victim had no shoes, and his pants and shirt were ripped. Blood was all over him. He was crying and worrying about going to see his mother. Overruling Swint's objection, the judge concluded that the victim was still under the stress of the excitement caused by the incident without opportunity to deliberate or fabricate and determined that Edward could testify as to what the victim said, deeming the testimony admissible as an excited utterance. N.J.R.E. 803(c)(2). Edward said that the victim told him Troy and Rajhon had participated in the incident. He said the victim knew " ... it was Troy 'cause Troy off his mask". He further said Rajhon asked him "who killed my brother".
Newark Detective Calvin Parkman testified that he was dispatched to the hospital on June 19, 1996, at approximately 1:30 a.m. He met the victim who described to Parkman what had happened to him. Without objection, Parkman testified that the victim told him Rajhon Muhammed, who was also known as Corey Smith, and a person named Troy committed the assault. The victim did not know Troy's last name. He also testified that the victim knew it was Rajhon Smith "by the fact that, number one, he said he knew him for approximately a year. He said he knew him for ... he associated him for a year and he said his inflections, his voice, his mannerisms, you know, and the fact that he was ...