On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. L-04-06-0502.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Lyons and Kestin.
A Gloucester County grand jury returned Indictment No. 04-06-0502, charging defendant, Troy L. Jackson, with first-degree attempted murder, contrary to N.J.S.A. 2C:5-1 (count one); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1d(1) (count two); second-degree possession of a firearm for unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count three); and third-degree possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5(d)(4) (count four). Subsequently, on August 24, 2005, defendant was also indicted by a Gloucester County grand jury and charged with one count of second-degree possession of a weapon by a convicted person, contrary to N.J.S.A. 2C:39-7. Defendant was tried on the charges set forth above between October 17 and October 27, 2005. The trial court first tried defendant on the charges set forth in Indictment No. 04-06-502. A jury found defendant guilty of all the charges contained in that indictment. Immediately following that trial, defendant was tried on the August 24, 2005, one-count indictment charging second-degree possession of a weapon by a convicted felon and found guilty.
On the day set for sentencing, the trial court denied the State's motion for an extended term. Defendant was then sentenced to a term of imprisonment of twenty years on the first-degree attempted murder charge. The court found the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to be applicable and defendant was therefore found to be parole ineligible for eighty-five percent of the twenty-year term. Pursuant to the Graves Act, N.J.S.A. 2C:43-6c, defendant was found to be parole ineligible for fifty percent of the term imposed.
The trial court then merged the aggravated assault conviction (count two) into the first-degree attempted murder count. With respect to the second-degree possession of a firearm for an unlawful purpose conviction (count three), defendant was sentenced to a term of ten years concurrent to count one of the indictment, five years of which defendant is to be parole ineligible pursuant to the Graves Act. The court merged the third-degree possession of a handgun without a permit (count four) into count three of the indictment.*fn1
Defendant was sentenced on the second-degree possession of a weapon by a convicted person to a ten-year term to be served concurrently with the sentence set forth above. The appropriate fines and penalties were also assessed and defendant was ordered to pay $14,818 in restitution. This appeal ensued.
Defendant did not testify at trial, nor did he present any witnesses in his defense. The following facts are therefore based upon the State's proofs.
According to the testimony of Bill Carpenter, on the night of February 23, 2001, he went to John and Doug's Bar and Grill in Williamstown. He was accompanied by defendant, defendant's cousin Tyrese Jackson, and Rob Wilkins. Before they left for the bar, defendant asked Wilkins for a gun. Carpenter testified that he saw defendant with the gun before they went to the bar.
During the night, while at the bar, Tyrese and Labard Dumas got into an altercation regarding Melanie Chila. After some words were exchanged, Dumas punched Tyrese, "la[ying him] out on the ground," according to Chila.
Bill Carpenter described what happened, stating:
Tyrese Jackson was talking to a lady. I guess it was her boyfriend, said something to them, they got into an altercation. Then one--the guy hit Troy--knocked--I mean, Tyrese, knocked him out, and the next thing you know, I was about to hit the guy, and I looked over out of the corner of my eye, which was Troy sitting there with a gun, pulled it out and shot him right in the face.
In a statement dated February 19, 2004, by Kenneth Glover to the police, which was introduced into evidence but retracted by Glover while on the witness stand, he stated:
Glover: Came over there it was me, Rob Wilkins, Troy Jackson and Bill Carpenter. We see Tyrese Jackson lying there. We see the victim, going on about when he had the, about how he knock the guy out and this and that, this and that and as he [inaudible] Troy Jackson looked down on the ground at his [cousin] looked right at the guy, when the guy turned around he reached in [inaudible] pulled a semi-automatic out and shot him in the face with it.
Det. Smart: Troy Jackson pulled out a semi-automatic and shot the guy that hit Tyrese Jackson in the face area, is that what you[re] saying?
Det. Smart: How close were you to Troy Jackson at that time?
Glover: Within reaching distance.
According to the testimony of Dumas, the victim, he was standing over Tyrese after knocking him down, when he heard a gunshot. It hit Dumas in the mouth, and he just "sat there for a quick second." Dumas was struck in the right cheek, through the jaw. Dumas "got my tongue blown up, all my teeth blown out, and that's about it." Another person was on the ground screaming, and Dumas thought that that person had been shot, too. Dumas stepped over the other person and walked to the door. He drove himself to Sicklerville to the home ...