On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-08-1208.
Before Judges Stern, A. A. Rodríguez
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant was convicted of murder, N.J.S.A. 2C:11-3a(1) and/or (2) (count one), possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count two), and possession of a firearm without a permit, N.J.S.A. 2C:39-5b (count three). Count two was merged into count one for purposes of sentencing, and defendant was sentenced for the murder, to a term of life imprisonment, with 85% of seventy-five years to be served without parole eligibility, under the No Early Release Act (NERA).*fn1 In addition, defendant was sentenced to a concurrent five year sentence for the permit violation. On this appeal, defendant argues:
POINT I THE PROSECUTOR TRANSGRESSED ALL LIMITS OF PROPRIETY THROUGHOUT THE ENTIRE TRIAL, DENYING THE DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
POINT II THE TRIAL COURT FAILED TO GRANT A JUDGMENT OF ACQUITTAL OR A MOTION FOR A NEW TRIAL; NO REASONABLE JURY COULD FIND THAT THE STATE HAD PROVEN ITS CASE BEYOND A REASONABLE DOUBT.
We also wrote to counsel and asked them to be prepared at oral argument to address the sentence on the murder conviction in light of State v. Manzie, 335 N.J. Super. 267 (App. Div. 2000).
Our careful review of the record leads us to conclude that the trial issues raised by defendant are clearly without merit and warrant only the following discussion. R. 2:11-3(e)(2). We therefore affirm the judgment. However, we vacate the NERA term imposed on the life sentence, and remand for imposition of a sentence of life imprisonment with thirty years before parole eligibility.
On October 15, 1997 around 6:00 a.m., Ruby Waller was approached by Lannie Silver near West Third Street and Lee Place in Plainfield. Silver was looking for a location to buy drugs and was escorted by Waller to the Mack House on Prescott Place where she regularly purchased crack-cocaine.
Upon arriving at the "Mack House," Waller proceeded to a window at the front of the house and sat on a bench located in front of the window. The window shade was drawn. However, Waller placed an order for "four nickels" of crack-cocaine and slid $20 through the "cracked" portion of the window to a man she identified as "Ben."*fn2 After receiving the drugs that she purchased, Waller stood and moved away from the window, allowing Silver to sit on the bench.
Silver then asked Ben, "[w]hat you got," at which point Ben "pulled the shade back and looked out the window" at Silver. After seeing Silver, Ben and defendant exited the house, and Ben yelled at Silver, "get the F out of here, [we] don't sell drugs [here], white mother-f......"*fn3 Silver tried to retreat from the porch with his hands in the air, repeating that he "just want[ed] to buy some drugs." However, defendant and Ben followed Silver, yelling at him and using profane language. According to Waller, at one point defendant stated, "[h]old up, I got something for this mother-f....." He then entered the Mack House and returned "a second" later holding a gun "in his hand, down on the side."
Upon seeing the defendant with a gun, Waller testified that she "ran" to her residence a short distance away. As she "approached the top stairs" to the house, Waller "heard a gunshot." Once inside the house she heard ...