On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-06-1326.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2007
Before Judges Axelrad and Messano.
Defendant Albert Bowser was indicted by the Essex County grand jury and charged with felony murder, N.J.S.A. 2C:11-3a(3), purposeful and knowing murder, N.J.S.A. 2C:11-3a(1)(2), and robbery, N.J.S.A. 2C:15-1. At trial, the judge submitted the lesser-included offenses of aggravated manslaughter, reckless manslaughter, aggravated assault, and simple assault to the jury, which found defendant guilty of a single count -- the second-degree reckless manslaughter of Fred Bush. Defendant was sentenced to a sixteen-year extended term of imprisonment, eighty-five percent of which was to be served prior to parole eligibility pursuant to NERA.*fn1
On appeal, defendant raises two issues for our consideration.
UNDER THESE FACTS, THE JURY INSTRUCTION ON SELF-DEFENSE SHOULD NOT HAVE INFORMED THE JURY THAT MERELY BRANDISHING A DEADLY WEAPON IS NOT DEADLY FORCE; THAT INSTRUCTION SHOULD NOT BE GIVEN WHEN, AS HERE, THE DEFENDANT IS UNARMED AND THE EVIDENCE SHOWS HE MAY HAVE RESORTED TO DEADLY FORCE (A DEADLY PUNCH) IN RESPONSE TO THE VICTIM'S HAVING BRANDISHED AND "C[O]ME AT" THE DEFENDANT WITH A KNIFE; MOREOVER, THE JURY SHOULD HAVE BEEN INSTRUCTED THAT WHEN THE VICTIM "CAME AT" THE DEFENDANT WITH A DEADLY WEAPON, THE JURY COULD INFER THAT THE VICTIM HAD AN INTENT TO KILL. (Not Raised Below).
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE AND UNCONSTITUTIONAL IN LIGHT OF STATE V. NATALE AND STATE V. PIERCE.
After consideration of these contentions in light of the record and applicable legal standards, we affirm defendant's conviction, but remand the matter to the trial court for re-sentencing.
The testimony at trial revealed that on October 24, 2004, at approximately 8:00 p.m., as he walked through Newark's Green Acres Park, Burl Gary Gordon was approached by defendant. Gordon stated that defendant asked him if he wanted to buy some drugs, but Gordon declined and continued on his way. As he was leaving the park to go to a store, Gordon noticed defendant had approached another individual, later identified as Fred Bush.
After completing his business at the store, Gordon walked back through the park and noticed Bush lying on the ground near a park bench and defendant "walking fast" out of the park. Gordon heard someone yell, "He whacked the shit out of him," and noticed that Bush was apparently not breathing. Gordon later identified defendant from a photo array prepared by the police.
Officers who responded to the scene testified that they found Bush lying on his back with a "hawk bill type knife" in his right hand. They observed injuries to his face, some blood on the ground near his head, and a vial of crack cocaine in his left hand.
Bush was pronounced dead at the scene, and the Essex County Medical Examiner, Dr. Nobby Mambo, testified that the cause of his death were injuries to the head. Mambo described the injuries as an "abrasion on the back of the head, a fractured skull, and a hemorrhage over the lobes and base of the brain." Because his dentures were broken, Mambo opined that Bush was most likely struck in the face, and noted the absence of any defensive wounds on Bush's body. Toxicological results indicated that Bush had recently ingested cocaine at the time of his death.
Michael Smith testified that the next day, October 25, defendant sold him a cell phone claiming someone had given it to him as a gift. Smith acknowledged making several calls on the cell phone and this enabled the police to identify the phone's approximate location. On November 1, 2004, they ...