On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-09-3578.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 15, 2008
Before Judges Skillman and Winkelstein.
A jury found defendant guilty of simple assault, in violation of N.J.S.A. 2C:12-1a(3); harassment, in violation of N.J.S.A. 2C:33-4; and possession of a weapon, a firearm, for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a. The trial court sentenced defendant to an eight-year term of imprisonment, with three years, six months, of parole ineligibility, for possession of a weapon for an unlawful purpose. The court merged defendant's convictions for the other offenses into his conviction for possession of a weapon for an unlawful purpose.*fn1
Defendant's convictions were based on a July 17, 2004 altercation in the home of his brother, George Holness, who was also the boyfriend of the victim, Shakeeya Summers. Defendant accused Summers of stealing $60 from him. Summers denied the accusation and left the Holness house. However, she returned later with her four-month old daughter. Defendant again accused Summers of stealing his money, and Summers again denied the accusation. According to Summers, defendant pulled out a shotgun during this altercation and pointed it at her while she was carrying her daughter. Summers also alleged that defendant pointed the gun at his brother and another person, Glenn Weathers, who were also in the house at the time. Defendant then put the gun down to his side, and Summers left the house and called the police. After the police responded to the scene, they searched the house but were unable to find the gun. Summers' testimony that defendant had a shotgun during the altercation was corroborated by Weathers' taped pretrial statement that he saw a gun in defendant's hands. Weathers also stated that defendant gave the gun to a "boy," who removed it from the Holness home. Weathers recanted these statements at trial, but the trial court admitted a tape of his statements into evidence based on its findings that the tape was authentic and that there were sufficient indicia of reliability of Weathers' statements contained on the tape to justify its admission.
Defendant did not take the stand or present any other evidence in his defense.
On appeal, defendant presents the following arguments:
I. THE TRIAL COURT REVERSIBLY ERRED IN RULING THAT GLENN WEATHERS' RECANTED, PRIOR, INCONSISTENT STATEMENT WAS SUFFICIENTLY RELIABLE TO BE ADMITTED INTO EVIDENCE AT TRIAL (U.S. CONST. AMENDS 6, 14; N.J. CONST. (1947) ART I, PARA 10).
II. THE TRIAL COURT REVERSIBLY ERRED IN PERMITTING THE PROSECUTOR IN HIS OPENING AND CLOSING STATEMENTS AND THE STATE'S WITNESSES TO TESTIFY BEFORE THE JURY THE EXTREMELY PREJUDICIAL STATEMENTS THAT HOLNESS POINTED A SHOTGUN AT SUMMERS' FOUR-MONTH-OLD BABY AND AT GEORGE HOLNESS WHICH INFORMATION SHOULD HAVE BEEN EXCLUDED FROM THE RECORD UNDER N.J.R.E. 404(b) AND 403 AND WHICH CONSTITUTED PROSECUTORIAL MISCONDUCT (U.S. CONST. AMENDS VI AND XIV; N.J. CONST. (1947) ART. I, PARA. 10).
III. HOLNESS' SENTENCE SHOULD BE REVERSED AS ILLEGAL AND MANIFESTLY EXCESSIVE; HOWEVER, IF IT IS NOT REVERSED ON THOSE GROUNDS IT SHOULD BE REVERSED AND REMANDED FOR A STATE V. NATALE, 184 N.J. 458 (2005) REVIEW.
We reject defendant's arguments regarding the admissibility of Weathers' taped pretrial statements, presented under Point I of his brief, substantially for the reasons set forth in Judge Millenky's oral opinion. The arguments presented under Points II and III of defendant's brief are clearly without merit and do not warrant discussion. R. 2:11-3(e)(2). We only note that the trial court indicated its familiarity with State v. Natale, 184 N.J. 458 (2005) and imposed sentence in conformity with that then recently decided case.