On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-10-1347.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lisa.
Along with several co-defendants, defendant was the subject of a multi-count indictment charging him with: (1) first-degree murder of James Anderson, N.J.S.A. 2C:11-3a(1) or (2) and N.J.S.A. 2C:2-6 (count one); (2) second-degree possession of a handgun with a purpose to use it unlawfully against Anderson, Victor Sanders, and Romaine York,*fn1 N.J.S.A. 2C:39-4a (counts two, five and seven);*fn2 (3) third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count three); and (4) first-degree attempted murder of Sanders and York, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:2-6 (counts four and six). During pretrial proceedings, the court denied defendant's motions to dismiss the indictment and to bar evidence of oral statements he made immediately prior to the shooting.
After a ten-day trial, the jury found defendant guilty on count one of the lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. The jury also found defendant guilty on counts two and three. Defendant was acquitted of the attempted murder charges in counts four and six.
After merging counts two and three with count one, the judge sentenced defendant to twenty years imprisonment subject to an 85% parole disqualifier and five years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. In addition to imposing all mandatory monetary assessments, the judge ordered defendant to pay $25,000 in restitution to the victim's children, jointly and severally with his co-defendant, Jonathan Wheeler, who was also convicted at the same trial of the same charges as defendant.*fn3
Defendant argues on appeal:
POINT I IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BECAUSE OF PROSECUTORIAL MISCONDUCT IN THE GRAND JURY, THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN APPLYING THE DOCTRINE OF "RES GESTAE"
POINT II TESTIMONY THAT DETECTIVE BORDAMONTE "BELIEVED" THAT TYRONE SANDERS AND RONALD ANDERSON GAVE THE POLICE INFORMATION THAT WAS HELPFUL IN THE INVESTIGATION CONSTITUTES PLAIN ERROR (NOT RAISED BELOW)
POINT III THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION
POINT IV THE 20 YEAR BASE CUSTODIAL SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION ON COUNT ONE FOR AGGRAVATED MANSLAUGHTER WAS MANIFESTLY EXCESSIVE AND THE ORDER OF $25000 RESTITUTION WAS AN ABUSE OF DISCRETION
(A) THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING AGGRAVATING FACTORS N.J.S.A. 2C:44-1[a(1)] AND N.J.S.A. 2C:44-1[a(2)] TO BE APPLICABLE
(B) HE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A BASE CUSTODIAL TERM ON THE DEFENDANT'S CONVICTION THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERM
(C) THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING RESTITUTION IN THE AMOUNT OF $25000
We reject the first three arguments and affirm defendant's conviction. However, we remand for reconsideration of the sentence imposed.
Defendant was a drug dealer and member of a group known as the "Pittsburgh Crew." Between April and May 2002, defendant traveled from Pittsburgh, Pennsylvania to Passaic to meet with Anderson and York to conduct several drug-related transactions. At some point, defendant advanced money to Anderson and York to acquire a large amount of heroin. York insisted that he and Anderson were robbed of this money when they went to buy the drugs in Newark. The Pittsburgh Crew, however, suspected that Anderson had kept the money instead.
On the evening of May 28, 2002, at about 11:00 p.m., defendant ran into Anderson's brother Ronald and Tyrone Sanders at the T & L Lounge in Passaic. Defendant was looking for Anderson and asked both Ronald and Tyrone to place phone calls to Anderson. Defendant told Tyrone to tell Anderson that if he ...