On appeal from the Superior Court of New Jersey, Law Division, Essex County, 03-06-2328-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Fuentes and Baxter.
Defendant, Altereke Nash, was indicted by an Essex County grand jury on June 26, 2003, and charged with the following offenses: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree felony murder of Javier Colon, N.J.S.A. 2C:11-3a(3) (count two); first-degree murder of Javier Colon, N.J.S.A. 2C:11-3a(1), (2) (count three); first-degree robbery of Javier Colon, Ben Allen, Vitor Baptista,*fn1 Xavier Chavez, Paul Abreu, Ricardo Pacheco, and Laura Gonzalez, N.J.S.A. 2C:15-1 (counts four, five, eight, eleven, fifteen, sixteen, and seventeen); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts six, nine, thirteen, and eighteen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts seven, ten, fourteen, and nineteen); and second-degree aggravated assault of Xavier Chavez, N.J.S.A. 2C:12-1b(1) (count twelve).
On May 19, 2004, Judge John C. Kennedy denied defendant's motion to sever the charges in the indictment. The court subsequently denied defendant's motion to suppress an out-of-court identification and reconsider the motion for severance.
Following a trial before Judge Kennedy and a jury from January 18, 2005 through February 9, 2005, the jury convicted defendant of: one count of second-degree conspiracy to commit robbery (count one); two counts of first-degree robbery, of Vitor Baptista and Ricardo Pacheco (counts eight and sixteen); one count of second-degree robbery of Laura Gonzalez, as a lesser-included offense of first-degree robbery (count seventeen); two counts of third-degree unlawful possession of a weapon (counts nine and eighteen); and two counts of second-degree possession of a weapon for unlawful purposes (counts ten and nineteen). The jury acquitted defendant of the remaining charges.
On April 8, 2005, the trial judge denied defendant's motion for a new trial and sentenced him to a total of twenty-two years of incarceration, as follows: the judge merged defendant's conviction for conspiracy (count one) into his convictions for the robberies of Baptista, Pacheco, and Gonzalez (counts eight, sixteen, and seventeen), and, on count eight, first-degree robbery of Baptista, sentenced defendant to fifteen years imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; for unlawful possession of a weapon (count nine), the judge sentenced defendant to four years imprisonment, concurrent with his sentence on count eight; the judge merged the conviction for possession of a weapon for an unlawful purpose (count ten) with count eight; for first-degree robbery (count sixteen), the judge imposed a fifteen-year term of imprisonment, subject to NERA, concurrent with the sentence for counts eight and nine; for second-degree robbery (count seventeen), the judge sentenced defendant to a consecutive term of seven years imprisonment, subject to NERA; for third-degree unlawful possession of a weapon (count eighteen), the judge imposed a four-year prison term, concurrent with the sentence for count seventeen; and the judge merged the second conviction for possession of a weapon for an unlawful purpose (count nineteen) with count sixteen. The court also imposed appropriate fines and penalties.
On appeal, defendant raises the following arguments:
POINT I - THE CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SEVER THE INDICTMENT.
POINT II - THE CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL.
POINT III - THE CONVICTION MUST BE REVERSED SINCE DEFENDANT WAS DENIED A FAIR TRIAL AS HE WAS SEEN BY A JUROR WHILE SHACKLED.
POINT IV - THE CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.
POINT V - THE CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT ALLOWED ADMISSION OF EXPERT TESTIMONY WITHOUT THE REQUISITE DISCOVERY.
POINT VI - THE SENTENCE SHOULD BE REDUCED OR VACATED AND THIS MATTER SHOULD BE REMANDED FOR RESENTENCING.
In light of the record and controlling law, we find defendant's arguments to be without merit and affirm.
Defendant was convicted for his part in a crime spree that began on November 19, 2002. At approximately 10:30 p.m. that evening, Vitor Baptista, a bartender at a restaurant on Elm Road in Newark, was walking to his car after work when a red two-door car pulled alongside him. The driver of the vehicle signaled him with his headlights, and said something that he could not hear. When he approached the driver's side window, the driver, who Baptista later identified as defendant, pointed a handgun at his chest, and demanded that he give him his money. After he gave defendant approximately $200, the car sped away. Baptista reported seeing two men in the car; although the car windows were tinted, he was able to identify defendant from a photographic display.
At approximately 10:40 p.m. that same evening, Ben Allen, Angel Mota, and Javier Colon were walking in the area of Garside and Second Avenues in Newark. Allen and Colon were walking together, while Mota was walking about thirty feet ahead of them. According to Allen, a man, who he later identified as defendant, approached the men from behind and, with gun in hand, demanded that they give him their coats. As Allen ran, he heard a shot, looked back, and saw Colon on the ground. He ran back to attend to Colon, and saw the man who had approached them enter the passenger-side door of a red, four-door car with a spoiler on the rear. He described the assailant as an African-American male, with a thin, athletic build, between five feet, eight inches and six feet tall. Allen later identified defendant's photograph from a photographic display. Colon died from a gunshot wound to the chest; the shot was fired from a distance of about twelve to eighteen inches.
Mota corroborated much of Allen's testimony. He saw the shooter with a silver handgun, and saw him get into a "darker red" car after the incident. Mota described the shooter as a thin man, slightly taller than five feet, eight inches, with a light-brown complexion. Although Mota conceded that he did not get a very good look at the suspect, he selected defendant's photograph from a display because his physical features most closely resembled those of the person he remembered. Mota admitted, however, that he, Allen, and Colon had been drinking and smoking marijuana before the incident, and that he was "kind of tipsy."
Roughly two hours later, at approximately 12:30 a.m. on November 20, Xavier Chavez was walking on North Sixth Street in Newark, when he observed a two-door, red sedan parked a few houses in front of him. Two heavily-clothed men got out of the car and walked towards him. With guns in their hands, the men began "stripping [Chavez] of [his] clothes." Chavez struggled with them, and ran away. As he ran, the men began shooting at him, but he was not hit. He was able to hide, and the men drove away.
Chavez testified that both men were wearing bandanas on their faces, but he was able to take the bandana off of one man during the struggle. Although he initially told the police that he would not be able to positively identify the man whose face he saw, he later picked defendant's picture from a display.
A few days later, at approximately 2:30 a.m. on November 23, 2002, Ricardo Pacheco, Paul Abreu, and Laura Gonzalez had just parked near Abreu's house on Pulaski Street after having returned from the Guitar Bar in Newark. As they walked to Abreu's house, they were approached from behind by two men who demanded their money. Pacheco testified that the two men took approximately $130 from him, and took Abreu's and Gonzalez's cell phones.
During the incident, an unidentified person in a white Lincoln Town Car pulled up and asked what was happening. When that occurred, the two men ran to their vehicle, which Pacheco described as a red four-door car, and drove away; the Lincoln Town Car followed it. As the cars left, Pacheco recalled hearing four gunshots. The driver of the Lincoln Town Car has not been identified.
At the police station, Pacheco identified defendant's picture. He also described defendant's car.
Gonzalez corroborated much of Pacheco's testimony. She also saw the men leave in a four-door, red car. She was never shown any photographs, and she was unable to identify either of the men.
On November 20, 2002, Newark Detective Michael Palermo issued a bulletin for the police to look for red cars like those that had been described in the incidents. On November 25, Newark Police Officer Julio Paredes located a red Chevrolet Beretta and a red Chevrolet Lumina in the street near a police mini-precinct in Newark. The Lumina had what appeared to be a bullet hole in the rear spoiler. Both cars were towed to the Essex County Crime Scene Unit for inspection. Michael Parente, a long-time friend of defendant, told Detective Palermo that he had seen defendant in the Lumina before, but he would not say definitively whether the Lumina belonged to defendant.
Peter Gozsa, a Crime Scene Investigator with the Essex County Prosecutor's Office, examined both the Beretta and Lumina for latent fingerprints. Although he recovered no fingerprints from the Beretta, he recovered four fingerprints from the Lumina, one of which belonged to defendant.
Gozsa also took photographs of the cars. In one photograph, he placed a rod through a bullet hole found in the rear spoiler of the Lumina, to demonstrate the path of the bullet. He testified that it appeared that the bullet entered the top of the spoiler and exited out of the bottom. The trial court judge issued a cautionary instruction to the jury explaining that Gozsa was only an expert on fingerprints, and was merely giving lay testimony regarding the bullet's trajectory.
The police also recovered several other items of evidence from the crime scenes. A police officer dispatched to Garside Avenue, where the incident involving Allen, Mota, and Colon had occurred, recovered a nine millimeter shell casing. Another officer dispatched to Garside Avenue recovered a projectile. The officer who went to the crime scene on North Sixth Street, where Chavez was robbed, recovered a spent nine millimeter casing. On Pulaski Street, where Pacheco, Abreu, and Gonzalez were robbed, an officer recovered spent casings and projectiles. The Newark Police Department ballistics laboratory tested the casings and projectiles found at the crime scenes and determined that they were discharged from the same firearm.
Defendant's first argument is that the trial court's failure to sever the indictment deprived him of a fair trial. The State responds that the joinder of all the charges was appropriate given the facts and circumstances of the case. We agree with the State.
Whether to sever an indictment is within the discretion of the trial court. State v. Chenique-Puey, 145 N.J. 334, 341 (1996). Absent an abuse of discretion, an appellate court ...