December 31, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LATEEF JONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-11-1353 and 04-11-1354.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 12, 2007
Before Judges Cuff and Lihotz.
Following a jury trial on Indictment No. 04-11-1353, defendant Lateef Jones was convicted of third degree aggravated assault (significant bodily injury), N.J.S.A. 2C:12-1b(7) (Count Two); second degree possession of a weapon (firearm) for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three); third degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:29-2a (Count Four); and third degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Count Five). In a separate trial, the jury found defendant guilty of two counts (second and fourth degree) of certain persons not to have weapons offenses, N.J.S.A. 2C:39-7a and -7b, on Indictment No. 04-11-1354. On the first indictment, after merging Count Two into Count Three, the judge imposed a seven-year term of imprisonment with a three-year parole disqualifier and four-year terms of imprisonment on Counts Four and Five. The sentences imposed on the first indictment are concurrent to each other. On the second indictment, the judge merged the fourth degree certain persons charge with the second degree certain persons charge and imposed an eight-year term of imprisonment with a five-year parole disqualifier to run consecutive to the sentence imposed on the first indictment. The requisite fines, penalties and assessments were also imposed.
On April 9, 2004, at around 10:20 p.m., Danielle Albano, was walking to her sister's house near Fifth Avenue and Broadway in Elizabeth. She heard a noise behind her, turned around and saw defendant running towards her with a gun. Albano turned and fled. While running, she heard the screeching sound of a car and five or six shots. Albano did not feel the first two shots. When she realized that she had been shot, she discovered wounds in her hip and both thighs. She also saw Jones enter a green Intrepid which had rounded the corner.
Albano called her brother on her cell phone to inform him that she had been shot. She stumbled to her sister's house and collapsed on the stairs. The police arrived and questioned Albano about the incident. She did not identify defendant as the shooter that evening because she was medicated, in pain and scared.
Albano had seen defendant on numerous occasions in the neighborhood and had three or four verbal encounters with him but knew him only as "Beefy." In March 2004, defendant told Albano that a "girl was looking for [her]" and he inquired about her sexual orientation. A week and half later, defendant stated to Albano, "get out of here before I smack the shit out of you." Defendant made the same comment to Albano a week later. Both incidents occurred when defendant was approximately five feet away from Albano.
A few months after the shooting, Albano informed the police that defendant had shot her. She testified that she was afraid of possible repercussions if she identified defendant as the person who shot her. Before visiting the police station, Albano testified that she learned defendant's real identity as a result of the police report obtained by her mother. After encouragement from her partner, Albano contacted the authorities to identify her assailant. At the police station, Albano gave a statement and identified Jones from an array of six photographs as the person who shot her. At trial, she testified that she saw defendant's face clearly on the night of the shooting and he wore the same clothing as he had on previous occasions.
During her testimony, Albano revealed that on March 28, 2005, she pled guilty to third degree possession with intent to distribute and received a three-year sentence in State prison. She insisted that she did not receive special consideration or leniency in her plea agreement in exchange for her trial testimony.
Rausheta Davis, defendant's girlfriend, testified on his behalf. Davis stated that on the night of the shooting, she, defendant and another woman were watching television and listening to music at home. Davis testified defendant was home all evening. Davis admitted that she failed to provide this information to the authorities when Jones was arrested in 2004, and only provided this information in March 2005 after she was contacted by Jones' defense attorney.
On appeal, defendant raises the following issues:
THE DEFENDANT'S CONVICTIONS MUST BE REVERSED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (Not Raised Below).
AT SENTENCING, THE TRIAL COURT ACTED UNDER A MISTAKE OF LAW AND BY VIRTUE OF THAT MISTAKE, IMPOSED AN EXCESSIVE SENTENCE.
Defendant argues that the verdict is against the weight of the evidence. He contends the victim was inherently incredible due to her criminal history, her delayed identification, and conditions at the scene of the shooting. The argument faces a formidable procedural hurdle because defendant failed to move for a new trial.
A party claiming that a jury verdict is against the weight of the evidence must file a motion for a new trial with the trial court. R. 2:10-1; State v. McNair, 60 N.J. 8, 9 (1972); Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362 (App. Div. 1998); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973). The motion must be filed within ten days of the verdict. Fiore, supra, 311 N.J. Super. at 362. Rule 2:10-1 states:
In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.
Defendant did not file the requisite motion and raised the issue for the first time on appeal. As a result, we are not required to consider this contention, but address it due to the substantial term of imprisonment imposed.
Contrary to defendant's contention, substantial evidence in the record supports this verdict. Before the shooting, the victim encountered defendant numerous times in the neighborhood. She testified that on the day of the shooting defendant wore the same clothing as he had worn during her previous encounters with him. Although it was dark, Albano was no more than twenty-feet from Jones and she saw his face before she turned and ran. The victim also expressed a credible reason for declining to identify defendant earlier. Quite simply, she was afraid. Finally, Albano's criminal history did not disqualify her as a witness. It is the function of the jury to assess a witness's credibility. State v. Frisby, 174 N.J. 583, 594-95 (2002).
Here, there was evidence to allow a jury to find beyond a reasonable doubt that defendant shot Albano. Perry, supra, 128 N.J. Super. at 190. We do not reverse a jury's verdict if the verdict is supported by the evidence. R. 2:10-1.
Defendant argues that the trial judge relied on inaccurate statements of law by the prosecutor and his defense attorney that the certain persons conviction required imposition of a consecutive sentence. Clearly, the judge and both counsel believed that N.J.S.A. 2C:39-7b required a consecutive term. Nevertheless, the judge also stated that he would have imposed a consecutive term independent of any statutory direction.
We are satisfied that the judge properly applied the principles set forth in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986) in imposing a consecutive term. There is no basis for this court to disturb the sentence.
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