On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-02-0420.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2008
Before Judges Axelrad, Payne and Messano.
Defendant Khalif McKinnon appeals from the judgment of conviction and sentence that followed his jury trial on charges of conspiracy to commit murder in the second degree, N.J.S.A. 2C:5-2 and 2C:11-3; first-degree purposeful and knowing murder of Cheryl Green, N.J.S.A. 2C:11-3a(1) and (2); first-degree attempted murder of Carlos Matias, N.J.S.A. 2C:5-1 and 2C:11-3; first-degree attempted murder of Martin Perez, N.J.S.A. 2C:5-1 and 2C:11-3; first-degree attempted murder of Jose Sanchez, N.J.S.A. 2C:5-1 and 2C:11-3; first-degree attempted murder of Juan Cruz, N.J.S.A. 2C:5-1 and 2C:11-3; third-degree illegal possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun with the intent to use it unlawfully, N.J.S.A. 2C:39-4(a).
The jury acquitted defendant of conspiracy, murder, and all four charges of attempted murder, but it convicted him of the lesser-included offense of aggravated manslaughter as to Green, N.J.S.A. 2C:11-4(a)(1), three second-degree aggravated assaults, N.J.S.A. 2C:12-1(b)(1), as lesser-included offenses of the attempted murder charges as to Matias, Sanchez and Cruz, and the weapons offenses. Defendant was acquitted of all charges relating to Perez.
On January 31, 2006, defendant's motion for a new trial was denied and a total aggregate sentence of thirty-four years imprisonment was imposed, 85% of which was to be served without parole eligibility in accordance with the No Early Release Act (NERA).*fn2 This appeal ensued.
Defendant has raised the following issues for our consideration:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL INCLUSION OF LESSER-INCLUDED OFFENSES FOR WHICH THERE WAS NO RATIONAL BASIS. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S PREJUDICIAL AND ERRONEOUS INSTRUCTION ON THE LESSER-INCLUDED OFFENSES OF ATTEMPTED MURDER.
A. THE DEFENDANT HAD NO NOTICE AND NO OPPORTUNITY TO BE HEARD ON ALLEGATIONS THAT THE DEFENDANT COMMITTED AGGRAVATED ASSAULT CRIMES.
B. AGGRAVATED ASSAULT IS NOT A LESSER-INCLUDED OFFENSE OF ATTEMPTED MURDER.
C. IF N.J.S.A. 2C:12-1(b)(1), N.J.S.A. 2C: 12-1(b)(2) and N.J.S.A. 2C: 12-1(b)(3) ARE LESSER-INCLUDED OFFENSES, THEN THE COURT ERRED BY NOT INCLUDING AN INSTRUCTION ON N.J.S.A. 2C:12-1(b)(4). (Partially Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE AFTER THE JURY ASKED FOR A RE-INSTRUCTION ON THE LAW OF AGGRAVATED MANSLAUGHTER AND AGGRAVATED ASSAULT. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CROSS-RACIAL IDENTIFICATION EVEN THOUGH THERE WERE CROSS-RACIAL IDENTIFICATIONS. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S ADMISSION OF IDENTIFICATION EVIDENCE.
A. THE TRIAL COURT ERRED BY REFUSING TO HOLD A WADE*fn3 HEARING NOTWITHSTANDING SOME EVIDENCE OF SUGGESTIBILITY.
B. BASED ON THE IDENTIFICATION EVIDENCE PRODUCED AT TRIAL, THE IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED.
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAD KNOWINGLY AND VOLUNTARILY WAIVED HIS MIRANDA*fn4 AND NEW JERSEY COMMON LAW RIGHTS.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S CONFUSING AND PREJUDICIAL INSTRUCTION ON THE LAW OF TRANSFERRED INTENT.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE TRIAL COURT'S REFUSAL TO ALLOW THE DEFENSE TO PRESENT OTHER-CRIME EVIDENCE SHOWING THAT THE CRIME SCENE INVESTIGATOR WAS UNDER INDICTMENT FOR OFFICIAL MISCONDUCT.
THE DEFENDANT WAS UNFAIRLY PREJUDICED BY THE IMPROPER ADMISSION OF PHOTOGRAPHS.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW . . . WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS. (Partially Raised Below)
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
B. THE TRIAL COURT MADE FINDINGS OF FACT INCONSISTENT WITH JURY FINDINGS TO IMPOSE AN EXCESSIVE SENTENCE.
C. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES.
D. A FORTY-ONE YEAR SENTENCE FOR BEING RECKLESS IS CRUEL AND UNUSUAL AND SHOCKS THE CONSCIENCE OF THE COURT.
We have considered these contentions in light of the trial record and applicable legal standards. We affirm.
On April 13, 2004, between 9:00 and 9:30 p.m., Martin Perez, his cousin Carlos Matias, Jose Sanchez, Juan Cruz, and Cheryl Green were standing near a Honda Civic owned by Perez parked on James Street in Newark. A dark-colored Acura Legend, variously described by the witnesses as black, green, or gray, with tinted windows, passed the group slowly, made a right turn, circled the block, and came back up James Street at a high rate of speed, stopping in front of the group. The car windows were lowered, a door opened, and at least one individual, later identified as defendant, began shooting.
Perez, at first, "[d]ove" under the Civic with the others, but when he saw "some black boots" step out of the back seat of the Acura, he "took off and ran." When Sanchez saw the car window open and a gun come out, he too "hid under the car" by its front wheels and "play[ed] dead." He did not see the others and as "the shots g[o]t closer," he "kept moving[,] trying to go under the car but [he] couldn't," and was shot in the right leg. He saw Green and Matias lying next to him in "[b]ad shape." Matias was moaning in pain and he knew Green was dead.
Matias had his back to the Acura talking to Sanchez, when he heard shots and felt "something hit [him] in the face." His "first reaction was to hit the floor" and "pretend like [he] was laying down." He heard "boom, boom, boom," then the shots stopped. Matias heard Green plead, "Please, no, not me," and then "heard again boom, boom, boom."
Cruz lay flat on his stomach near the car, and Green lay next to him, her face near his feet. Cruz saw blood and nudged Green's leg, asking if she was all right, but there was no reaction. Then Cruz saw a pair of brown Timberland boots and he "broke," running "zig zag" down James Street and into a parking lot, while two people chased after him shooting. Eventually, Cruz saw "alot (sic) of people running towards the ...