On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Atlantic County, 00-04-0737.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Conley and Weissbard.
Following a hung jury on defendant and co-defendants' aggravated assault and related offenses, co-defendants pled guilty and defendant was retried. He was convicted of second- degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and conspiracy, N.J.S.A. 2C:5-2. An eight-year term with an 85 percent NERA disqualifier was imposed on the second-degree aggravated assault. Two concurrent five-year terms were imposed on the weapon convictions. The remaining convictions were merged. The necessary fines and penalties were also imposed.
On March 4, 2000, Kirk Banks, Sr., was on his way to pick up his son. He was early and stopped by an apartment complex to visit his brother-in-law. He pulled into the parking lot and saw his cousin, Louis Murphy. He stopped to talk to Murphy. They spoke for about ten minutes when Murphy saw a black SUV pull into the parking lot. Three men jumped out, and opened fire, resulting in the shooting of Banks. Murphy identified those people as defendant and his co-defendants. One co- defendant was the driver. The other two had weapons, but only defendant fired the shots. Another witness also saw the shooting. She identified defendant as the shooter.
On appeal, defendant raises the following contentions:
POINT I: THE TRIAL JUDGE ERRED IN FAILING TO SUFFICIENTLY TAILOR THE IDENTIFICATION CHARGE TO POINT OUT THE INCONSISTENCIES IN THE ACCOUNTS OF THE VARIOUS WITNESSES (Not Raised Below).
POINT II: THE TRIAL JUDGE ERRED IN FAILING TO HOLD A HEARING AFTER EVIDENCE OF JUROR INTIMIDATION WAS ALLEGED.
POINT III: THE DEFENDANT'S SENTENCE IS EXCESSIVE.
We have considered these contentions in light of the entire record and the applicable law. As defendant received terms above the presumptive, a sentencing remand is required. State v. Natale, 184 N.J. 458, 484 (2005). In all other respects, we are convinced defendant's contentions are of insufficient merit to require further opinion. R. 2:11-3(e)(2). We add the following brief comments.
Defendant did not raise the identification issue below. Before us, he contends the judge unfairly emphasized the State's evidence. Not so. The charge is as follows:
The Defendant, as part of his general denial of guilt, contends that the State has not presented sufficient reliable evidence to establish, beyond a reasonable doubt, that he is the person who committed the alleged offenses of March 4th, 2000. The burden of proving the identity of the person who committed the crime is always upon the State. For you to find this Defendant guilty, the State must prove, beyond a reasonable doubt, that this Defendant is the person who committed the crime. The Defendant has neither the burden, nor the duty to show that the crime, if committed, was committed by someone else or to prove the identity of that other person. You must determine, therefore, not only whether the State has proved each and every element of an offense charged, beyond a reasonable doubt, but also whether the State has proved, beyond a reasonable doubt, that this Defendant . . . is the person who committed it. The State has presented the testimony of Louis Murphy and Catherine Fisher-Garretson. You will recall that these witnesses, through the transcript from the prior proceeding, identified the Defendant in Court as the person who committed the offense or offenses charged.
The State also presented testimony that on a prior occasion before this trial, the witness, Louis Murphy, identified the Defendant as the person who committed this offense. According to the witnesses, their identifications of the Defendant was based upon the observations and perceptions that they made of the perpetrator at the time the offense was being committed back in March of 2000. It is your function to determine whether any witnesses' identification of the Defendant is reliable and believable or whether it is based on a mistake or for any reason not worthy of belief. You must decide whether it is sufficiently reliable evidence upon which to conclude that this Defendant is the person who committed the offenses charged. In evaluating ...