On appeal from Superior Court of New Jersey, Law Division, Camden County, No. 03-12-4373-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2007
Before Judges Wefing, Parker and Lyons.
Tried to a jury, defendant was convicted of murder, N.J.S.A. 2C:11-3(a); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). He was acquitted of terroristic threats, N.J.S.A. 2C:12-3(a), and retaliation against a witness, N.J.S.A. 2C:28-5(b). The trial court sentenced defendant to forty-five years in prison for murder, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. In addition, it imposed a five-year term, with a three-year period of parole ineligibility, to be served concurrently, for possession of a weapon for an unlawful purpose, and a five-year consecutive term for unlawful possession of a weapon. The trial court also imposed the appropriate fines and penalties. Defendant has appealed. Having reviewed the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.
The victim of the homicide was sixteen-year-old Markquise Hill, who was shot to death in the early evening hours of November 25, 2002.*fn1 Markquise was the younger brother of Anthony Hill, with whom defendant had a fight several weeks earlier. Defendant assaulted Anthony because he had allegedly not paid defendant fifty dollars due from a drug transaction Anthony had conducted on defendant's behalf. The State's theory of the case was that defendant shot Markquise either in retaliation for Anthony's failure to make payment or in a case of mistaken identity.
Prior to the trial getting under way, the State sought a ruling that evidence of the prior altercation between defendant and Anthony Hill would be admissible. Following a hearing on the question, the trial court ruled the evidence admissible but also determined that a limiting instruction was required.
The defense was one of alibi. Defendant presented evidence to the effect that he had accompanied his mother, his sisters, his girlfriend and several others to a restaurant in Philadelphia to celebrate his sister's birthday and did not arrive back in Camden until after the shooting had taken place. By its verdict, the jury rejected this testimony.
On appeal, defendant raises the following arguments:
HUNT'S TRIAL WAS WRONGFULLY TAINTED BY THE IMPROPER ADMISSION PURSUANT TO N.J.R.E. 404(B) OF PRIOR-WRONGS EVIDENCE
A. The Trial Court's Admission Of The Prior-Wrongs Evidence Pursuant To N.J.R.E. 404(b) Should Be Reviewed Under A De Novo Standard
B. Under N.J.R.E. 404(b) And New Jersey Case Law, There Are Clearly Defined Criteria That Must Be Met Before Evidence Of Prior-Wrongs Is Admitted
1. The Evidence Of The Altercation And The Drug Sales Is Not Relevant To A Material Issue
2. The Probative Value Of The Evidence Of The Altercation And The Drug Sales Is Outweighed By Its Apparent Prejudice
3. Even If Some Evidence Relating To The Altercation And The Drug Sales Would Have Been Admissible, The Trial Court Nonetheless Erred By Failing To Limit The Scope And Content Of The Evidence Admitted
HUNT'S CONVICTION FOR MURDER MUST BE REVERSED BECAUSE THE TRIAL COURT COMMITTED PLAIN ERROR BY INSTRUCTING THE JURY THAT IT NEED NOT REACH A UNANIMOUS VERDICT AS TO WHICH SPECIFIC CRIME OF MURDER, IF ANY, HUNT COMMITTED (NOT RAISED BELOW)
HUNT'S CONVICTIONS FOR MURDER, POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE, AND UNLAWFUL POSSESSION OF A HANDGUN SHOULD BE REVERSED BECAUSE HIS DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE, IN VIOLATION OF ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION AND THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
A. This Issue Is Ripe For Decision On Direct Appeal
B. Defense Counsel Was Ineffective In Failing To ...