On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 97-12-2194.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 11, 2008
Before Judges Collester and C.L. Miniman.
Defendant Angelo Burgos appeals from the denial of his application for post-conviction relief (PCR) in connection with his 1999 conviction on charges of knowing or purposeful murder contrary to N.J.S.A. 2C:11-3(a)(1), -3(a)(2); felony murder contrary to N.J.S.A. 2C:11-3(a)(3); six counts of armed robbery contrary to N.J.S.A. 2C:15-1; possession of a weapon for an unlawful purpose contrary to N.J.S.A. 2C:39-4(a); and possession of a handgun without a permit contrary to N.J.S.A. 2C:39-5(b). Defendant was sentenced to life in prison with a thirty-year parole disqualifier on the murder conviction, six twenty-year terms on the armed robbery convictions concurrent to each other and consecutive to the life term and a five-year concurrent term on the conviction for gun possession without a permit. The felony-murder and unlawful-gun-possession convictions were merged for sentencing purposes. We affirmed the convictions and sentences on direct appeal and three months later the Supreme Court denied defendant's petition for certification. State v. Burgos, No. A-3047-99 (App. Div. Feb. 21, 2002), certif. denied, 172 N.J. 359 (2002).
We recited the factual evidence supporting the convictions on direct appeal:
The State presented compelling evidence that in the early morning hours of April 29, 1997, defendant shot and killed Robert Price during a robbery in a pool room in Lodi. Price, a pool room patron, resisted the perpetrator's effort to remove gold chains from his neck. A scuffle ensued during which the perpetrator drew a firearm. As Price attempted to gain control of the gun, a shot was fired. When the gun jammed, the perpetrator slammed it on the table, re-cocked it and shot Price numerous times. After Price fell to the ground, the perpetrator shot him in the head and then fled the pool hall.
Although the perpetrator was hooded, the patrons were able to give a general description of him. That information was relayed by the Lodi Police to all nearby law enforcement agencies. After Sergeant Walsh of the Little Ferry Police Department received the transmission, he observed a light-skinned black male in a Dodge Stratus. He followed the vehicle, but after determining that the vehicle had not been stolen, he suspended his pursuit.
However, shortly thereafter, Officer John Harper of the Fort Lee Police Department observed a vehicle with a black male generally fitting the description given by the Lodi Police. When he activated his overhead lights, the vehicle came to a stop. However, it suddenly took off and proceeded through a toll booth at the George Washington Bridge toward New York City. Officer Harper pursued the vehicle, but lost sight of it in the vicinity of 178th Street and Amsterdam Avenue. Prior to the pursuit, Officer Harper "ran" the license plate of the vehicle, number PD505L, and determined that it was the same vehicle previously observed by Sergeant Walsh.
Sometime that same morning, defendant's sister and brother-in-law received a telephone call from defendant. Defendant requested that his sister report to the police that her vehicle had been stolen. The sister in fact had loaned the vehicle to defendant a few days earlier. She complied and reported the vehicle stolen. Further, defendant called his girlfriend in Syracuse, New York, advising her of his intention to visit her. During a three-way call with defendant, his girlfriend and mother, defendant asked his mother whether anyone had come looking for him. Later in the day, defendant again called his girlfriend and asked her to obtain a bus ticket for him for a return trip from Syracuse to New York City.
At approximately 6 a.m. the same morning, the New York Police issued a parking ticket to a car with a New Jersey license plate number PD505L parked on the corner of Broadway and 162nd Street. When defendant returned from Syracuse to Passaic County, he was arrested for the murder of Price and the robberies.
Over defendant's objection, Assistant Prosecutor David Pine was permitted to testify that defendant had been indicted in 1995 for committing armed robbery and weapons possession offenses. Robert Price, the murder victim, was also the victim of that armed robbery. The indictment alleged that $35,000 had been stolen from Price.
The trial court permitted the testimony as "other crimes evidence" under N.J.R.E. 404(b), relevant to defendant's motive to kill Price. [Id. at 3-5.]
We concluded without discussion that there was no merit to five of the points raised on appeal and, after discussion, concluded that there was no merit to defendant's claims that "[t]he trial judge erred in admitting evidence of the pending Passaic County robbery charge as there was never any proof offered to connect this charge to the pending homicide charge" and "[t]he trial judge erred in refusing to instruct the jury that they could not consider the pending indictment as evidence until they had determined that the defendant was the person who committed the homicide." Id. at 2-3. Essentially, defendant argued that other-crimes evidence should have been excluded absent clear and convincing evidence that he had committed the robbery. Id. at 5. We rejected this claim because the evidence of defendant's earlier indictment for robbing Price, based on Price's identification of defendant, had been admitted to prove that ...