On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-11-01386-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2008
Before Judges Carchman and Sabatino.
Following a Miranda*fn1 hearing and thereafter a jury trial, defendant, Ashton Barker, was convicted of simple assault (N.J.S.A. 2C:12-1a(1)), as a lesser included offense of second degree aggravated assault, (N.J.S.A. 2C:12-1(b)(1)); third-degree aggravated assault, (N.J.S.A. 2C:12-1(b)(2)); second-degree possession of a weapon for an unlawful purposes, (N.J.S.A. 2C:39-4(a)); and third-degree possession of a weapon without a permit, (N.J.S.A. 2C:39-5(b)). After appropriate mergers, defendant was sentenced to three-year custodial term with a three-year period of parole ineligibility. The sentence was to be served at a youth correctional institution. Defendant appeals, and we affirm.
The facts adduced at trial are simply stated. At approximately 3:30 a.m. on July 10, 2004, Alexis Crespo, a friend of defendant, was sitting on the stoop outside the apartment building at 15 Madison Avenue in Plainfield, when he observed defendant in a Chrysler M300 in the parking lot of a nearby McDonald's restaurant. After crossing the street to talk to defendant, Crespo informed him that "people were saying that defendant was a snitch." Crespo declined defendant's offer to take a ride with him, and as defendant drove off, Crespo returned to the apartment building.
Approximately ten minutes later, Crespo was standing outside the apartment building with an individual known as "Brooklyn" when defendant returned with his cousin, Dwayne Austin. Defendant and Austin exited the car and approached Crespo. According to Crespo, defendant appeared angry. Crespo observed that defendant was wearing a glove and holding a black gun. Defendant paced back and forth, and Crespo noted that defendant was acting "like he came for like revenge or something." He "was acting completely different from the way he had acted earlier that morning." Crespo was "skeptical" of the situation and thought that defendant wanted to shoot him so he ran inside the apartment building.
Once inside the building, Crespo heard a "thud on the door," which he thought was a gunshot. He waited in the building for between an hour and an hour and a half for defendant to leave, eventually walked home and then went to the police station to report the incident.
Leah Golphin, the owner of the Chrysler M300 driven by defendant, explained that she had known defendant for approximately two months prior to June 2004. She had purchased another car and wanted to move the car alarm from her Chrysler to the new vehicle. Defendant agreed to do the work so Golphin left her car at his house in June 2004; Golphin did not give defendant permission to drive her car.
Golphin also explained that sometime in July 2004, defendant called her and said "I just did a drive-by, ha ha."
He told Golphin that "he got mad at somebody and he [defendant] started shooting," although he did not identify that person. Golphin believed defendant was joking.
Two days later, on July 12, 2004, Detective Francis Wilson of the Plainfield Police Department went to 15 Madison Avenue to investigate the alleged shooting. He discovered a bullet hole just below the doorknob of the inner door to the apartment building, another bullet hole in the wall of the hallway behind the door and a bullet located between two walls in one of the apartments.
Additional relevant facts were adduced at the earlier Miranda hearing. Following Wilson's investigation, he arrested defendant. On July 29*fn2, 2004, the date of the arrest, prior to beginning his interview of defendant, Wilson read defendant his Miranda rights from a Miranda form that contained five separate questions. Wilson read each question to defendant and had him initial the form after each as an indication that he understood it. Defendant was cooperative with the investigation and did not appear to be under the influence of any drugs or alcohol. Defendant read aloud the waiver of rights at the bottom of the Miranda form and then signed and dated the form, which was witnessed and verified by Wilson and another officer.
After defendant waived his Miranda rights, Wilson began questioning defendant about the shooting. Shortly after the interview began, defendant told Wilson: "I need to speak to Detective Speck from North Plainfield." Wilson stopped the interview, left the room, and contacted Speck. Wilson informed Speck that defendant had been a suspect in an aggravated assault investigation, and defendant wanted to speak with him. After speaking with Speck, Wilson brought defendant the phone and left the interview room.
Speck knew defendant through his work as a North Plainfield police officer because defendant had done some undercover work for the North Plainfield Police Department and the Somerset County Prosecutor's Office. Defendant told Speck that he was unsure whether he should speak with Wilson, and Speck responded by advising defendant that he knew Wilson, had worked with him in the past, and "that he was a good guy and if [defendant] was up front with him, he would be honest with [defendant] also." Speck made no agreements, promises, or threats to defendant, although he did tell defendant that he ...