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State v. Rose

June 26, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANDRE ROSE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 98-10-4206.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: April 14, 2008

Before Judges Stern, A.A. Rodríguez and C.L. Miniman.

Defendant appeals from the denial of his petition for post-conviction relief (PCR) on two grounds: First, defendant asserts that his trial counsel was ineffective in failing to pursue a passion/provocation manslaughter defense to a murder charge. Second, defendant argues that he was prejudiced at trial by the prosecutor's failure to disclose that state witness Aaron J. Johnson negotiated with the prosecutor for a reduced sentence for an unrelated offense in exchange for testifying at trial. We conclude that neither ground for relief has merit and affirm.

At 8:00 p.m. on June 8, 1998, two Newark police officers were dispatched to investigate a report of a man with a gun near the Felix Fuld Housing Project. When the officers arrived, they saw people running from the Project and then heard several gunshots. As they drove into the Project, a woman yelled, "They shooting in the playground." The officers drew their guns and ran toward two males standing over a motionless body lying on the ground.

One, defendant, holding a handgun, fired a shot into the victim, Jamil Billups. The other man, co-defendant Kareem Wilson, was standing next to defendant, also holding a gun. As the officers approached, someone yelled "5-0" and the defendants fled, eluding both police officers, although one officer was able to make a visual identification of defendant. After the officers returned to the victim, emergency medical services personnel discovered Billups had a toy gun in his clothing when they cut his clothing away and he had eight gunshot wounds to his brain, abdomen, arm, hands and thighs. He did not survive his wounds. Investigation revealed that two guns were used in the shooting.

Through eyewitness interviews and other investigation, the police were able to identify the perpetrators by name. Defendants were located two months later in Florida and were returned to New Jersey. On October 19, 1998, the Essex County Grand Jury returned an indictment charging both defendants with second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1), (2); third-degree possession of two handguns without a permit, N.J.S.A. 2C:39-5(b); and second-degree possession of handguns for an unlawful purpose, N.J.S.A. 2C:39-4(a).

Defendants were tried jointly before Judge Betty J. Lester and defendant was found guilty on all counts whereas his co-defendant was found guilty of conspiracy to commit murder and the lesser-included offense of aggravated manslaughter and acquitted of the weapons offenses. As to defendant's convictions, the judge merged the conspiracy and possession-foran-unlawful-purpose convictions with the first-degree murder conviction and sentenced defendant to imprisonment for life with an eighty-five-percent parole-ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. She also imposed a concurrent five-year term with a two-and-one-half-year parole-ineligibility period for possession of a weapon without a permit. The sentences were to run consecutively to a ten-year term then being served.

On direct appeal, defendant through counsel presented the following arguments:

POINT I -- IT WAS PLAIN ERROR FOR THE TRIAL COURT TO FAIL TO CHARGE THE JURY ON PASSION-PROVOCATION MANSLAUGHTER IN VIEW OF EVIDENCE THAT THE VICTIM HAD STOLEN A LARGE AMOUNT OF MONEY FROM THE DEFENDANT; THAT THE TWO MEN HAD ARGUED JUST BEFORE THE SHOOTING; AND THAT THE VICTIM WAS ARMED WITH AN IMITATION HANDGUN. (Not Raised Below)

POINT II -- THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED WHEN THE JURY WAS FALSELY TOLD THAT THERE WAS NO PLEA AGREEMENT BETWEEN AARON J. JOHNSON AND THE STATE. (Not Raised Below)

POINT III -- THE DEFENDANT'S SENTENCE OF "LIFE WITHOUT PAROLE" UNDER THE NO EARLY RELEASE ACT IS ILLEGAL. (Not Raised Below) [State v. Rose, No. A-3440-99 (App. Div. Jul. 12, 2002) (slip op. at 3), certif. denied, 175 N.J. 76 (2002).]

In a separate pro se brief, defendant made the following additional arguments:

POINT IV*fn1 - THE COURT'S CHARGE TO THE JURY WAS DEFECTIVE. ...


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