On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 97-10-2297D.
Before Judges Pressler, Ciancia and Hoens.
The opinion of the court was delivered by: Hoens, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2002
Donald Burris was indicted in connection with the August 6, 1997 shooting death of Peggy Selvaggio in the employee parking lot of Harrah's Casino in Atlantic City. The indictment charged defendant in three counts: first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3a(1) and (2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39- 5c(2). The third-degree charge was dismissed prior to trial. Following a jury trial, the defendant was found guilty of both murder and the second-degree firearm charge. His motion for a new trial was denied and he was sentenced to a term of sixty- five years for murder, subject to an 85% parole disqualification under the No Early Release Act (NERA), and he was assessed fees and penalties. For sentencing purposes, the conviction on the firearm count was merged into the murder conviction.
On appeal, counsel for defendant raises the following points:
THE IMPROPER ADMISSION OF HEARSAY STATEMENTS FROM THE VICTIM CONCERNING HER FEAR OF DEFENDANT AS PROOF OF DEFENDANT'S MOTIVE OR STATE OF MIND VIOLATED HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
THE ADMISSION OF IRRELEVANT OTHER-CRIMES EVIDENCE OF A VIOLENT INCIDENT INVOLVING DEFENDANT AND HIS EX-WIFE IMPROPERLY SUGGESTED A PROPENSITY FOR VIOLENT BEHAVIOR, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURORS THAT A CONTINUING COURSE OF ILL TREATMENT COULD PROVIDE THE BASIS FOR A VERDICT OF PASSION/PROVOCATION MANSLAUGHTER DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)
DEFENDANT'S MURDER CONVICTION WAS NOT SUBJECT TO THE 85% PAROLE INELIGIBILITY PERIOD OF THE NO EARLY ...