On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. I-01-3-1140.
Before Judges Stern, Wecker and Reisner.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2004
Defendant was convicted at a jury trial of murder, contrary to N.J.S.A. 2C:11-3a(1),(2) (count one), unlawful possession of a shotgun, in violation of N.J.S.A. 2C:39-5c(1) (count two), and possession of the shotgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count three). The trial judge merged count three with count one and sentenced defendant to life imprisonment, with thirty years to be served before parole eligibility on the murder conviction, and to a concurrent five year term for the weapons offense based on defendant's possession of the shotgun without first having obtained a firearm purchaser's identification card. Defendant also received a concurrent seven year sentence, with 85% to be served before parole under the No Early Release Act (NERA), for an eluding offense to which he pled guilty. The parties agreed that NERA applied to that offense.
On this appeal defendant argues:
POINT I - WHERE THE STATE CALLED SEVEN EYEWITNESSES AND NONE OF THEM WAS ABLE TO IDENTIFY DEFENDANT AS THE MURDERER, THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO PRESENT A DEFENSE AND TO A FAIR TRIAL. (Not Raised Below)
POINT II - WHERE SOME WITNESSES TESTIFIED THAT DEFENDANT WORE A BLACK COAT AND OTHERS SAID HE WORE A BRIGHT YELLOW VEST, AND SOME WITNESSES TESTIFIED THAT THE GUNMAN WORE A BLACK COAT AND OTHERS SAID HE WORE A YELLOW VEST, THE COURT'S FAILURE TO INSTRUCT THE JURY ON HOW TO EVALUATE SUCH CONFLICTING IDENTIFICATION TESTIMONY DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO PRESENT A DEFENSE AND TO A FAIR TRIAL. (Not Raised Below)
POINT III - WHERE SOME WITNESSES IDENTIFIED DEFENDANT AS"BROOKLYN" AND DEFENDANT DENIED THAT HE WAS KNOWN BY THAT NAME, IT WAS THE JURY'S JOB TO DECIDE WHETHER HE WAS KNOWN BY THAT NAME, BUT THE COURT TOOK THE ISSUE FROM THE JURY WHEN IT REPEATEDLY INSTRUCTED THAT"THE GRAND JURORS CHARGE THAT LESLIE RANDOLPH KING, ALSO KNOWN AS BROOKLYN," COMMITTED THE ALLEGED OFFENSES. (Not Raised Below)
POINT IV - BECAUSE THE STATE FAILED TO ADVISE DEFENDANT, A GUYANESE NATIONAL, THAT HE HAD A RIGHT UNDER THE VIENNA CONVENTION TO CONTACT THE GUYANESE CONSULATE FOR ADVICE AND ASSISTANCE UPON HIS ARREST, ANY STATEMENTS THE POLICE OBTAINED FROM DEFENDANT FOLLOWING HIS ARREST WERE OBTAINED IN VIOLATION OF DEFENDANT'S PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS RIGHT TO DUE PROCESS.
In a supplemental brief which we permitted defendant to file while the appeal was pending, defendant also argues"that his life term is illegal and unconstitutional" in light of the United States Supreme Court's recent opinion in Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004).
Our careful review of the record convinces us that there is no basis for reversing the convictions and that only the following discussion is appropriate in a written opinion. R. 2:11-3(e)(2). We also uphold the challenged sentences in this case.
The following facts, developed at the trial with respect to the shotgun killing of Lesley Jean Francois, were sufficient to sustain the jury's verdict.
On the night of November 26, 2000, and early morning of November 27, 2000, Francois and defendant were at the Rainbow Bar in Irvington. Francois had been drinking heavily. After dancing with Francois, a woman was talking with defendant while Francois was attempting to get her attention. Denton Howell, also known as"Dufer," who knew both Francois and defendant, told Francois not to"disrespect the man," referring to defendant, while he was talking to the woman. Due to the loud music in the bar and the nature of the discussion, Francois and Howell stepped outside to talk further about the matter. Thereafter, Francois' friends, defendant, the woman in question and others at the bar also went outside.
While outside, Francois' friend, Robenson Demande, started questioning the others about the problem. Howell then removed a.357 Magnum from his pocket and pointed it at Demande. Dwight Townsend, Howell and another man, known as Junior, thereupon pulled Demande around the corner. Demande testified that one of the men took his money while Howell was pointing a silver gun at him. They then heard a shot go off.
Howell looked around the corner to see what happened. He also fired"a single shot in the air," because he thought someone was firing at him. A few minutes after, the defendant, who was known to Howell as"Brooklyn" and was identified by Howell in the courtroom, walked up to Howell and asked him"to drop off [defendant's] car for him" at defendant's house. After leaving the bar, Howell"drop[ped] off" defendant's car and then buried the.357 Magnum gun in his own backyard. According to Howell,"Brooklyn" was wearing a light colored shirt and a black leather jacket that night.
Defendant visited Howell the next day. According to a statement Howell gave to the police, defendant told him"if the kid's not dead, he would have to kill him." At trial, Howell could not confirm that the statement was accurately reported. He could not recall what defendant said to him at the time.
Howell further testified that he did not possess a shotgun at the bar that night. Howell, however, pled guilty and was sentenced on aggravated assault and possession of a weapon charges relating to the handgun he did possess and the events that occurred at the Rainbow Bar.
Demande incorrectly thought he"was the one who got shot" during a robbery when forced to go with the men at gunpoint. He observed the gun as"silver," like a.45, and"flat," not round. According to Demande, Howell could not have shot Francois because he was in front of Demande when the shot went off.
Townsend also saw Howell with a gun, but not a shotgun. After the shot was fired and the crowd started to disperse, Townsend went around the corner and saw a man with a shotgun in his hand. He also heard someone yell"Brooklyn did it." Townsend saw the man inside the bar wearing a hooded sweatshirt. He did not know the shooter and did not identify him in court.
Franco Charles also walked outside of the bar and witnessed someone coming across the street towards Francois with"something in his hand." The person"pulled out a gun" and shot Francois. He described the shooter as wearing"a yellow vest," with dark sleeves. He was unable"to make out" the ...