On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 02-04-0479.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2007
Before Judges Stern, A. A. Rodríguez and C. S. Fisher.
Following a jury trial, defendant Juan Quinones was convicted of the first-degree murder of Timothy Jones, N.J.S.A. 2C:11-3a(1) and (2) (count 1); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (count 2); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count 3). The judge merged the count 2 conviction into the murder conviction and imposed a sixty-year term with a NERA*fn1 parole disqualifier; five years of parole supervision upon release; and the usual mandatory penalties and fees. On count 3, the judge imposed a consecutive five-year term. We affirm the convictions and the sentence on count 1, but vacate the sentence on count 3 for reconsideration pursuant to State v. Natale, 184 N.J. 458 (2005) (Natale II).
These are the salient facts. Defendant admitted that, the night before the murder, Ray Williams and Charles Morgan came to his home. There was an intimate prior relationship between Williams and defendant, involving payment for sexual activity. Williams and Morgan went into defendant's bedroom with defendant and locked themselves inside. Defendant's daughter, Janisha Foreman, was present in another part of the apartment. Eventually, Williams and Morgan called for a ride. When Janisha came into the bedroom to inform them that their ride had arrived, defendant was naked in bed and unconscious. Because the only way to exit the apartment was to unlock a deadbolt with a key, Williams attempted to wake defendant. However, defendant was unresponsive. Finally, Williams searched defendant's pants and found the key to the door. Williams later admitted that he left the house with the keys and the pants, which contained defendant's wallet with $300 inside.*fn2
Williams spent the night at a friend's house. The next day, on November 15, 2001, defendant went to Williams's neighborhood looking for him. Around this time period, Williams was living with his sister Brenda Gillison and her boyfriend Timothy Jones, the victim. Defendant went to Williams's house, armed with a hammer, and asked Gillison if Williams was there. Gillison responded no. Defendant left, but returned quickly. This time Jones was at the door. Jones told defendant that he would relay the message to Williams and explained that he and Gillison did not see Williams frequently. Jones told defendant not to come back. A fistfight scuffle ensued.
Akeem Wilder, Jones's neighbor heard screaming and went to the front area of the building. He saw Jones and defendant "tussling." A crowd of between thirty and fifty people gathered. This crowd was mostly hostile to defendant. Wilder became involved in the tussle by kicking defendant in the mouth. Defendant fell backwards. Wilder and Jones backed away.
Defendant's son, Juan Quinones, Jr., nicknamed "John-John," picked his father up from the ground and handed him a handgun. Jones pushed Wilder out of the way. According to Wilder, defendant shot Jones once in the chest and afterward, froze . . . and then he ran to a car" and fled. Defendant's sister, Lillian Roman, his brother-in-law, Efrain Reyes, and John-John were all in the vehicle. Defendant was arrested approximately two months later in Philadelphia by an FBI Task Force.
Rashawn T. Morgan, Terrence Morgan and Anthony Caminero testified that they were witnesses to the fight. According to them, there was a fistfight between Jones and a "Spanish guy." At some point, the Spanish guy took a gun and shot Jones. Rashawn T. Morgan identified defendant at trial as the "Spanish guy."
Kreshaun Barker also testified that he witnessed the fight between Jones and the defendant, or as he knew him, "Fuzzy." He testified that he had known defendant from seeing him around the neighborhood for the past six or seven years. On the date of the incident, he observed defendant go into the apartment building where Jones lived at around 1:30 p.m. and then he left 10 to 20 minutes later. Later that evening, he came upon defendant and Jones fighting. Barker said that defendant's son, who was standing to the right of his father, handed defendant a gun. Barker then saw defendant shoot Jones once from about three feet away. Barker positively identified defendant as the shooter at trial. Jones was pronounced dead the day of the incident. The bullet went through the right ventricle of his heart.
Seven days after the commencement of the trial, defense counsel, Gregory Aprile, announced to the court that he had represented witness Williams in a drug possession charge the year before. Defense counsel stated on the record:
I'll continue by saying if I felt, as I've expressed to my client, if I felt in any way I would be inhibited in cross examining  Williams or that I had gained some kind of particular knowledge or insight about him that I was now going to use, I would have disclosed that to the State or disclosed that to my client and if I felt in one way or the other my prior representation of  Williams would affect in any way my ability to continue in this matter.
The fact of the matter is as with Janisha Foreman, because of the circumstances of what was taking place the night before and because I did not wish to possibly open the door to certain of those activities by questioning either  Foreman or  Williams about the events that were occurring that night, and because ultimately it was not ever an issue that my client's wallet had been taken and believed that it had been taken by  Williams and that he had gone out the next day on a couple of occasions to look for  Williams to get his wallet back, I had intended to ask very little, if any, cross-examination. . . . I believe if I continue in this matter, there's going to be a voir dire of  Williams.
Subsequently, the following colloquy between the court and defendant occurred:
THE COURT: [Mr.] Quinones, are you satisfied that you understand what we're dealing with now or do you have any question[s] about it? Before I ask you how you feel about it, I want to be sure that you understand what it is that we're involved with now.
THE DEFENDANT: Yes, I fully understand, your Honor.
THE COURT: You do, okay. Because Mr. Aprile represented Mr. Williams during the course of time that your case was pending, these charges -- and when I say your case, I mean this case we are trying now -- there is an issue as to whether or not there is a conflict and whether or not Mr. Aprile should be allowed to continue to represent you.
Your position about this makes a difference, something that I have to consider. If I found that there was a conflict, that means that Mr. Aprile would not be allowed to represent you anymore and we would have to stop the trial and a new attorney would have to be assigned. We would have to try the case at another time if that's the way it was. . . .
Now, if there is a conflict, we would start all over again. Do you understand that?
THE DEFENDANT: Yes, I do, your Honor. . . .
THE COURT: And Mr. Aprile indicates to me -- well, you tell me. Do you want Mr. Aprile to continue to represent you even though he represented Mr. Williams who is a State's witness against you?
THE DEFENDANT: Yes, I do, your Honor.
THE COURT: I'm asking you this now [defendant] because I want the reporter to show this. If I allowed Mr. Aprile to continue, you wouldn't be able to come back on some later date and say now that I've got a new attorney and he's talked to me about this, I realized I made a mistake and I should have asked the judge to get me a different lawyer and not had Mr. Aprile represent me. Of course, if you can't afford an attorney, you could get an attorney assigned from the Public Defender's Office. Mr. Aprile does a whole lot of that, and so there are very good lawyers. Do you understand that by saying this now, you are giving up your right to essentially claim that this was a mistake later on if things turn out badly for you at this trial? Do you understand that's the meaning of this?
THE DEFENDANT: Yes, I do, your Honor.
THE COURT: Do you have any question at all about that?
THE DEFENDANT: No, you Honor.
THE COURT: Have you been satisfied with the services you have received from Mr. Aprile?
THE DEFENDANT: Yes, I am, your Honor.
THE COURT: Do you feel that it would cause you harm if he were not allowed to represent you anymore? In other words, that it would hurt you to go get a different lawyer other than Mr. Aprile?
THE DEFENDANT: Yes, it would.
Williams testified out of the presence of the jury to the events that took place the day before the murder in defendant's room, including the sexual encounter, the drugs and his taking of the wallet containing $300. Williams testified that he spoke with defendant on the telephone about the money, but grew frustrated and decided to spend the money.
The judge ruled that there was no conflict sufficient to discontinue the trial or disqualify Aprile. On direct examination before the jury, Williams admitted that he took the $300 from defendant's wallet. Aprile did not cross-examine Williams, explaining that there were no issues in dispute concerning the events of November 14, 2001.
At trial defendant's son, John-John, did not testify. The Assistant Prosecutor asked defendant's mother, Maria Roman, and sister, Lillian Roman, about John-John's whereabouts and implied that defendant arranged to have John-John unavailable for trial. It was established that John-John lived most of his life in Seattle, Washington with his mother. For a few months prior to the shooting, John-John lived with defendant on Totowa Avenue in Paterson. After this incident, John-John gave a statement to the police that was exculpatory to defendant. However, following John-John's arrest as a juvenile for possession of a weapon, he gave another statement inculpating defendant as the shooter. The address in the juvenile complaint was the correct Washington State address.
An investigator from the Passaic County Prosecutor's Office went to the Totowa Avenue address. He was told that John-John lived in Seattle, Washington. The investigator attempted to send a letter to the Seattle address given in the juvenile complaint. He improperly addressed the envelope with the wrong street address and zip code and it was returned marked "no such street address." No telephone call was made to the telephone number in Seattle, which was in the Prosecutor's Office's possession.
At trial, defendant did not testify. His mother testified about the aftermath of the shooting. She and other relatives took defendant to Elizabeth and then to a hospital away from the Paterson area. In response to the Assistant Prosecutor's question, she testified that John-John had returned to Seattle after the juvenile proceedings against him were concluded. According to her, she had not seen nor talked to John-John since he returned to Seattle over two years before. She acknowledged that she speaks to John-John's sister all the time and that is how she knows what is going on with him. Then the following exchanged occurred:
[ASSISTANT PROSECUTOR]: Q: Mrs. Roman, are you trying to hide John-John from this trial?
[DEFENSE COUNSEL]: Judge, I object to the question.
[THE COURT]: Overruled. I'll allow it.
Q: Mrs. Roman, wasn't there some discussion about whether John-John's presence at the trial would affect the case?
[DEFENSE COUNSEL]: Discussion, Judge? I have an objection to that question.
There was a discussion out of the presence of the jury, wherein the Assistant Prosecutor indicated that Janisha Freeman told him that John-John was in New Jersey about two weeks before trial and that "[Maria] Roman sent him to Washington." Out of the presence of the jury, defense counsel advised the judge that he was aware that John-John had not been subpoenaed by the State and that he had not subpoenaed John-John. In front of the jury, Maria Roman testified that John-John left for Seattle more than two years before the trial. She has not seen him since.
Lillian Roman, defendant's sister, testified for the defense. She indicated that at the time her subpoena arrived her husband Efrain Reyes was in Puerto Rico. She contacted him so that he would be available at trial. Reyes appeared and testified. During Lillian Roman's cross-examination, the following exchange occurred:
[ASSISTANT PROSECUTOR]: Q: You knew John-John was a witness to ...