On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-10-4339.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Fall and C.S. Fisher.
The jury in this matter heard evidence that at approximately 5:00 a.m. on January 27, 2001, Anthony Brown was standing outside of a high-rise building in Newark when a vehicle stopped in front of the building, and a man, later identified as defendant, exited from the vehicle's passenger side and said to Brown, "You remember me, mother fucker." With that, another individual exited the driver's side of the vehicle and fired gunshots that killed Brown. Both assailants reentered the vehicle and drove away.
Defendant was arrested on February 8, 2001 and later charged with second-degree conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count one); first-degree murder, contrary to N.J.S.A. 2C:11-3a(1), and -3a(2) (Count two); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b (count three); and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count four).
On February 24 and 25, 2003, the trial judge conducted a preliminary Wade*fn1 hearing on defendant's motion to suppress the out-of-court identification made by Gina Freeman. The motion was denied.
At the conclusion of a trial, the jury acquitted defendant of murder but found him guilty on all other counts. Defendant was sentenced to a ten-year term of imprisonment with a five-year period of parole ineligibility on count one (second-degree conspiracy to commit murder). The court merged count three (unlawful possession of a weapon) into count four (second-degree possession of a weapon for an unlawful purpose) and imposed a ten-year term of imprisonment with a five-year period of parole ineligibility on count four to run concurrently with the sentence imposed on count one. Mandatory fees and assessments were also imposed.
Defendant appealed, raising the following arguments:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY DEPRIVING THE DEFENDANT [OF] THE OPPORTUNITY TO ESTABLISH THAT OUT-OF-COURT INDENTIFICATIONS AND THE SUBSEQUENT IN-COURT IDENTIFICATIONS BY MS. SUTTON AND MS. FREEMAN WERE UNRELIABLE.
II. IN SUMMATION THE PROSECUTOR IMPROPERLY ASSERTED THAT THE JURY WOULD BE VIOLATING THEIR OATH AS JURORS IF THEY FOUND THE TRIAL TESTIMONY OF MS. SUTTON AND MS. FREEMAN NOT TO BE CREDIBLE BECAUSE OF THEIR DRUG ADDICTION (Not Raised Below).
III. THE JURY CHARGE WAS PREJUDICIALLY DEFECTIVE BECAUSE THE TRIAL COURT FAILED TO PROVIDE ADEQUATE GUIDANCE TO THE JURY AS TO HOW TO ASSESS CONSPIRATORIAL CULPABILITY (Not Raised Below).
IV. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO GIVE THE JURY, SUA SPONTE, INSTRUCTIONS PURSUANT TO STATE V. EARLE AND STATE V. GUNTER (Not Raised Below).
V. THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT ENGAGED IN AN EX PARTE OFF-THE-RECORD COMMUNICATION WITH A DELIBERATING JURY (Not Raised Below).
VI. THE CONCURRENT TEN (10) YEAR SENTENCES WITH FIVE (5) YEARS OF PAROLE INELIGIBILITY IMPOSED ON THE DEFENDANT'S CONVICTIONS FOR CONSPIRACY ON COUNT ONE AND POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE ON COUNT FOUR WERE MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.
The State has also appealed, arguing:
THE TRIAL COURT INCORRECTLY MERGED DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON WITHOUT A PERMIT WITH HIS CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE.
We affirm the rulings made by the trial judge on the Wade application for the reasons set forth in Part I of this opinion. Because of the trial judge's improper unrecorded, ex parte communications with the deliberating jury discussed in Part II of this opinion, we reverse and remand for a new trial. As a result, we need not address the issues raised in defendant's Points II, III, IV and VI. Lastly, in considering the State's cross-appeal, we observe that the trial judge erroneously merged the convictions on counts three and four. We ...