On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 04-10-1652.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Chambers.
The indictment charged defendant, Israel Arroyo, with aggravated assault, N.J.S.A. 2C:12-1(b)(1) ("FIRST COUNT"); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) ("SECOND COUNT"); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)("THIRD COUNT"). The case was tried before a jury, and at the end of the State's case defendant moved for dismissal of all the charges. The motion was denied, and the jury found defendant not guilty on the third count but guilty on the first two counts. Defendant then moved for a new trial on the ground that the verdict was against the weight of the evidence. The motion was denied. Thereafter, the judge merged the second count into the first count, and sentenced defendant to imprisonment for five years with a NERA 85% parole disqualifier. Defendant appeals, and we affirm.
Joress Tillman was shot in his chest on July 9, 2004. Before and at trial, Tillman identified defendant as the shooter. He had seen defendant on more than one hundred occasions before the shooting and he knew that defendant was his girlfriend's father. On numerous occasions, Tillman had been in defendant's bar and had seen him there, and he had often seen a photograph of the defendant that Tillman's girlfriend had. Nonetheless, the primary issue at trial was the validity of the identification.
On July 8, 2004, Tillman and Maritza Arroyo, his girlfriend, had an argument on the street outside of her apartment, where they lived together, in Jersey City. She had been drinking and was under the influence of drugs at the time. During the argument, she fell and broke her wrist. Police arrived and took Maritza to the hospital. The next day, Tillman visited Maritza in the hospital and then returned to her apartment around noon. He began packing their belongings because they were being evicted from the apartment. Maritza's mother arrived, and Tillman told her that Maritza had broken her wrist because she was drinking and using drugs.
After packing for awhile, Tillman left the apartment, returning later that day, at which time Maritza came home and they spoke. Shortly after their conversation he left again and did not return until about midnight, accompanied by his friend, Angel Selgado. Since the electricity had been turned off, Tillman lit four candles in the living room. Although he did not light a candle in the bedroom, he noted that when the bedroom window covering was pulled back, the room received light from a car dealership across the street.
After he was in the apartment for about fifteen minutes, he saw the sheet over the bedroom window move. Because he thought it was his brother playing a joke on him, he snuck up to the window, creeping along the bedroom wall. Then he pulled the sheet from the window and saw defendant standing outside the window, which was open. Defendant said, "Who's Reese?" to Tillman. Tillman, whose nickname is Reese, then replied, "What are you looking for him for?" Defendant said, "You disrespected my wife." [Defendant's brief notes that Tillman's statement to the police did not include that remark.] Tillman said, "I'm Reese. I didn't disrespect your wife." As Tillman uttered that statement, defendant raised his handgun and shot Tillman in the chest. Tillman was able to say to defendant that he knew him, after which defendant climbed over a gate in the backyard and ran away. Selgado apparently heard the shot and responded by running into the backyard, where Tillman told him who the shooter was. After looking for defendant's car, Selgado drove Tillman to the hospital.
After surgery was performed on his wound, Tillman spoke to two detectives who had arrived at the hospital. He told them that Maritza's father had shot him and gave them an accurate physical description of defendant. The police returned with a picture of defendant, and Tillman said that was the man who had shot him.
Although Tillman testified that he had only had one beer that day, the hospital records indicated that he said he consumed "large amounts of alcohol every day." He also testified that he used cocaine on a daily basis, but not on the day he was shot.
Tillman admitted that he had four convictions, two for burglary, and one each for aggravated assault and drug possession.
During his cross-examination, Tillman said that he had six stab wounds on his body, which were mostly from fights. Then he said they were not all stab wounds, but that some of his injuries came from falling down or getting scratched. Defendant's attorney asked whether a man named Richard Lane had been looking for him on the night of the shooting. The prosecutor objected to the question, and the judge sustained the objection. The prosecutor did not say why he was objecting, and the judge did not say why she was sustaining the objection. Defendant's attorney made no offer of proof on the subject.
Tillman also admitted that about a week after the incident, Maritza filed a domestic violence complaint against him for harassment and that a restraining order was issued against him.
The operating surgeon testified that as a result of the gunshot wound, Tillman had low blood pressure and was hypertensive. He described Tillman's condition as critical, noting that his injuries were potentially lethal. He also noted that Tillman was drunk when he arrived at ...