On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-07-00699.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges Parrillo, Sabatino and Alvarez.
A Union County grand jury returned an indictment charging defendant, Shareef Ali Pasha, with murder, N.J.S.A. 2C:11- 3(a)(1) and/or (2), armed robbery, N.J.S.A. 2C:15-1(a)(1), felony murder, N.J.S.A. 2C:11-3(a)(3), all first degree crimes, as well as third-degree unlawful possession of a weapon,*fn1 N.J.S.A. 2C:39-5(d), and third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d). Defendant was found guilty only of the lesser included offense of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), as well as possession of a weapon for an unlawful purpose.
On October 14, 2005, defendant was sentenced to ten years imprisonment with eighty-five percent parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, and sixty months of parole ineligibility due to the Graves Act, N.J.S.A. 2C:43-6(c), on the reckless manslaughter conviction. The count of possession of a weapon for an unlawful purpose was merged into the reckless manslaughter count. Defendant appeals; we affirm.
The following facts were developed at trial. On December 19, 2003, in Elizabeth, Christopher Palermo and Joel Diaz stopped at Jamil's grocery store to buy cigarettes and Denny's Liquors to buy beer. The men then walked to a bus stop where they stood with fourteen year-old D.M., and her nine year-old friend, K.P. Diaz asked D.M. for a light. K.P. recognized Diaz as a friend of her cousin. A few minutes later they were joined by two other men, one of whom was wearing something similar to a mask. According to D.M., the second taller man wore an "army jacket" with a "half hood" and had a mark near his eye. The two men walked past her and began a conversation with Palermo and Diaz. D.M. testified that the taller man, whom she later identified as defendant, stood next to Diaz. Diaz hit the taller man with a beer bottle, causing the man in the mask to yell, "Malik, let's go." As he and defendant ran away, Diaz chased after them. The taller man drew a gun from the right side of his waist and pointed it at Diaz. D.M. saw a flash as Diaz grabbed his side and ran into a nearby car lot. He died shortly thereafter. The taller man and his companion fled. About a week later, D.M. selected defendant's photo as the shooter from a photographic array.
Palermo testified that the man in the mask and the taller man approached him and asked, "where is the drugs at?" and then commenced to feel about his and Diaz's pockets. After Diaz hit the taller man with a bottle and they began to run away, Diaz gave chase. Palermo said he thought he saw a flash, heard two shots, and saw Diaz run into the car lot where he collapsed.
The owner of Jamil's grocery store identified defendant as a customer who bought cigarettes on the evening in question. In fact, he recalled ejecting him from the store during his second visit as he was drunk. Defendant acknowledged he had been in the grocery store twice that night. An acquaintance of defendant's testified that he encountered him that evening, and defendant allegedly said, "I just did something f---ed up . . . some kid owed me money, whatever, and I popped him." A fellow prisoner at the Union County jail where defendant was incarcerated pending trial also testified that he had known defendant for at least four years, and that he had heard defendant, whose birth name is Shareef, referred to as Malik on several occasions. He said defendant discussed Diaz's death with him, and claimed defendant said Diaz "wouldn't give it up" and so he had to "blat, blat," meaning kill him.
During the pre-trial Miranda*fn2 hearing, Detective Thomas Koczur testified that on December 27, 2003, he went to defendant's home, where he was admitted by defendant's mother, to execute the arrest warrant issued for Diaz's murder. Defendant's mother took Koczur, as well as Detective Louchaun Holmes and Detective Bridget Lawrence, to a basement bedroom where two men were sleeping. Koczur asked, "Shareef, Malik, is that you?" Koczur removed the covers from a bed and defendant stood up. Koczur asked, "Shareef," and defendant said "yes." Koczur then went on to ask, "Malik," and defendant said "yes." Defendant was then placed under arrest. He was not questioned or given his Miranda warnings until after he arrived at the police station. During the ride, defendant repeatedly asked, "Who did I shoot?" despite Koczur repeatedly admonishing him not to say anything until they had an opportunity to administer the Miranda warnings and had arrived at the station. Koczur testified during the Miranda hearing only that defendant asked, "Who did I kill?," not "Who did I shoot?" At trial he testified that defendant asked, "Who did I shoot?," and stated that he memorialized the inculpatory query in his police report.
After being Mirandized, defendant gave an oral and a written statement. He initially claimed he was at his mother's home on December 19, but later acknowledged being in Elizabeth that night, visiting the grocery store and being drunk. In his statement he said he began to drink at noon. He denied being known as Malik and claimed he did not use the name, but did not correct Koczur when arrested because people got his name "mixed up."
Defendant, whose only prior was a joyriding conviction, told the jury during his testimony that on the date in question, he had to go to court because he owed several fines and wanted to have an arrest warrant lifted. He explained the warrant was issued because he was incarcerated in the Essex County Jail the day he was due to appear in the East Orange court. He admitted to having begun to drink on December 19 before noon, before he went to court. He also told the jury he was an alcoholic who was no more drunk the day of the shooting than any other day, and that he was at his "normal level of being drunk." He admitted using ten or more aliases. Contrary to Holmes' testimony, defendant denied ever having acknowledged using Malik as a nickname and in fact, denied ever having made any admissions to anyone, particularly to the witnesses who testified at trial.
Defendant said December 19 was a typical day: "[W]ent to court, was drinking, hanging out." He also said, "[P]eople I tend to hang around with is drug addicts and alcoholics and we hang around each other, to drink and to get high." He also said, "[y]ou shoot an alias and the police try to arrest you, you shoot an alias. That is what its called on the street." He admitted that "the Elizabeth police know me by face." In his written statement defendant claimed he wore a black coat, black hat, white sneakers, and a blue hoody on the date in question. In his trial testimony, he stated that his written statement was accurate, but on redirect, he said he had been wearing a black and blue Carolina Panthers baseball cap.
On appeal, defendant raises the following points:
THE DEFENDANT'S ORAL STATEMENTS MADE TO DETECTIVE KOCZUR AND DETECTIVE HOLMES AND THE DEFENDANT'S WRITTEN STATEMENT SHOULD HAVE BEEN SUPPRESSED.
THE DEFENDANT'S WRITTEN STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE OF THE COERCIVE SOLICITATIONS MADE TO THE DEFENDANT BY DETECTIVE KOCZUR.
THE DEFENDANT'S POST ARREST ORAL STATEMENTS MADE TO DETECTIVE KOCZUR AND DETECTIVE HOLMES SHOULD HAVE BEEN SUPPRESSED.
THE POLICE FAILED TO "SCRUPULOUSLY HONOR" THE DEFENDANT'S RIGHT TO BE ADVISED OF HIS MIRANDA WARNINGS.
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S MISREPRESENTATION CONCERNING THE ALLEGED ORAL STATEMENT MADE BY THE DEFENDANT AFTER HE WAS ADVISED HE ...