On appeal from the Superior Court of New Jersey, Law Division, Essex County, 01-09-3649.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Lyons.
Following a jury trial, defendant Naquan O'Neil was convicted of several offenses arising from the homicide of Hassan Hardy. The jury rejected defendant's allegations of self-defense. He was convicted of first degree aggravated manslaughter, as a lesser-included offense of murder, N.J.S.A. 2C:11-4a (Count I); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (merged into Count I); and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count II). After appropriate merger of the offenses, the judge imposed concurrent terms aggregating twenty two years with a NERA*fn1 parole disqualifier. We affirm the convictions, but vacate the sentence on Count I and remand for resentencing pursuant to State v. Natale, 84 N.J. 458 (2005).
These are the salient facts. Defendant and Hardy knew each other. On March 16, 2001, they had an argument at the Terrace Ballroom in Newark and left in separate cars. They followed each other to a parking lot where the argument became physical. Hardy hit defendant with the door of his car. Defendant struck back with his fist. The two men separated and left the area. After a short period, they encountered each other on Chadwick Avenue in Newark. Hardy fired several shots at defendant, missing him. Because the arrival of the police was imminent, the men left the area.
Hardy went to the nearby home of Cynthia Crawford, a mutual friend. Defendant retrieved a .380 caliber handgun from a hiding place. He approached Hardy's parked vehicle, which was vacant and fired three shots into it. Defendant fled, keeping the handgun.
The following evening, at 9:00 p.m., defendant went to Crawford's home and picked her up in his car. Crawford noticed that defendant had a gun in his lap. Defendant dropped Crawford at her home at around 10:00 p.m. At around 1:00 a.m., defendant drove by Crawford's home, while Crawford and Hardy were standing outside. Hardy saw defendant and asked him why he shot at his car. The pair began shouting insults at each other from opposite sides of the street. According to defendant, Hardy reached into his pocket. Defendant responded by pulling the handgun from his own pocket and shooting Hardy in self-defense. Defendant fled from the scene. After the shooting, Crawford saw Terry Jones go through Hardy's pockets and remove: money, a cell phone and a handgun. Jones dropped the handgun next to the body as the police arrived.
Crawford testified that she was friends with defendant and Hardy. On March 18, 2001, Crawford saw defendant on her block at 12:30 a.m. He drove past her home, while Hardy was standing on the street a short distance from her home. At 1:00 a.m., she saw defendant exit a vacant lot on foot and proceed in the direction of her home. Standing across the street from Hardy, defendant said, "you like playing with guns" and then fired shots at Hardy. Hardy fell to the ground.
Defendant testified that he was friends with Hardy for approximately eleven years. He admitted to two prior CDS convictions and serving a five-year custodial term. According to defendant, on March 16, 2001, he went to the Terrace Ballroom and saw Hardy there. He and Hardy argued after leaving the Ballroom because he would not tell Hardy where he was going afterwards. The argument escalated. Hardy became angry and opened the car door to strike defendant. Defendant hit Hardy with an open hand. Hardy then struck defendant again with the car door, wherein defendant responded by punching Hardy in the eye.
After the fight, defendant went to Chadwick Avenue, exited his vehicle and sat on it. Hardy suddenly emerged from the bushes with a gun in his hand. According to defendant, Hardy then started firing gunshots at his legs and hit him on the head three times with the gun. Hardy then dragged defendant into a vacant lot, but released him when the police arrived.
Defendant conceded that he proceeded to the rear of the vacant lot and grabbed a .380 automatic weapon from "a local gun stash." He went to Hardy's vehicle, which was parked in front of Crawford's residence and fired three shots at the car. The following evening, he returned to Chadwick Avenue to visit his brother. He saw Crawford there. After going ice skating in the evening, defendant returned to Chadwick Avenue, armed with the weapon for self-protection.
Defendant saw Terry Jones while walking on Chadwick Avenue and then saw Hardy, directly across the street from him. Hardy was very angry over his damaged vehicle and words were exchanged between them. Hardy reached into his pocket and pointed a gun at him. Defendant fired one shot at Hardy in self-defense.
Out of the presence of the jury, the judge held a hearing regarding Hassan Harris's proposed testimony about defendant's prior bad act. According to Harris, six or seven months prior to Hardy's death, he saw defendant holding a revolver on his lap while seated in the driver's seat of a truck. The judge ruled that this evidence of defendant's prior bad act was admissible pursuant to N.J.R.E. 404(b). In front of a jury, Harris testified that at an unspecified time prior to ...