On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 03-08-00408 I.
The opinion of the court was delivered by: S.L. Reisner, J.A.D
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Seltzer and C.L. Miniman.
Defendant William Burden appeals from his convictions for third-degree attempted burglary, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2; second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; third-degree unlawful possession of an assault firearm, contrary to N.J.S.A. 2C:39-5f; and fourth-degree obstruction of justice, contrary to N.J.S.A. 2C:29-1. He also appeals from his aggregate extended term sentence of twenty years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The State cross-appeals from the merger of the two weapons offenses. We affirm the convictions on all charges, reverse the merger of the weapons convictions, and remand for reconsideration of the sentence.
We have determined to publish only that portion of our opinion addressing Burden's argument that N.J.R.E. 404(b) applies to evidence that he attempted to bribe a witness.*fn1
This case arose from an alleged attempted burglary and armed robbery at the home of Tameka Clayton. According to her trial testimony, on November 21, 2001, at 11:30 p.m., Clayton was in her apartment located at the rear of 63 West Broadway in Salem, New Jersey. The lights were on in the living room and in her bedroom, and television sets were on in her brother's and son's rooms. Her son, who was age four or five at the time, "busted" into Clayton's bedroom, "[k]ind of scared but calm," and reported something that made her first go check on her paralyzed brother, and then go to her son's room to look out the window. Clayton testified that she then "went back to my room to cut the circuit breaker off" after seeing "a couple people out the window . . . on the side of the house."
Clayton called the police "and said somebody's trying to break in." She saw "four or five" people and when she "lift[ed] the window up they started walking off so I went to my back door and that's when the police came, and they started running, and they jumped over the fence into Westside Court." At trial she testified that before the police arrived, one of the people "asked could he come in," and another responded "[s]he know me, come on" as if to urge the original speaker to leave. She was not able to identify any of these individuals by sight, but testified the second voice she heard outside (urging the others to "come on") was Burden's, a fact she had not immediately reported to the police. According to Clayton, she knew Burden as "G-Money,"*fn2 "[f]rom when he used to come to my house on [63 West] Broadway." She testified that he was welcome in her home, came there "a lot" and that she knew him both by sight and voice.
Clayton admitted that she did not tell the police that she recognized Burden's voice until two years after the incident, around the time she was indicted on drug charges. She insisted, however, that she was not promised any favorable treatment in return for identifying Burden.
According to both Clayton and police witnesses, immediately after the incident an inspection of Clayton's apartment windows revealed that a "screen was off" one of the windows, a condition which she testified had not previously existed in the four years she had lived there. In fact she testified that she had looked out her son's window earlier that night, and the screen was in place.
Officer Delapaz testified that he "was dispatched for a prowler complaint" to Clayton's address, and was "the first one on the scene." He "circled the perimeter around to the house," encountered Clayton at the back of the building and was talking to her when he heard some noise coming from the west side of the house where there was a chain link fence. I looked over to the left side of the house past the chain link fence and I saw three subjects in dark clothing running south on, past the house towards the chain link fence.
As soon as I saw what was going on . . . I just got on the radio, let the other officers know . . . [t]here were three subjects running towards the fence which is connected to the West Side Court property, jumped the fence and where they were running.
Upon receiving the report of an attempted burglary or prowler at 63 West Broadway, and Patrolman Delapaz's update "that the suspects had jumped the fence and ran into Westside Court," Patrolman Robinson went directly to Westside Court. While there he observed "two black males running towards me . . . and then they changed direction." The men were running from the direction of "a set of dumpsters . . . approximately ten to fifteen feet" from the fence behind Clayton's residence. Robinson "ordered them to stop, and they continued to run so [he] pursued them on foot," ...