On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-10-1323.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2008
Before Judges Fuentes, Gilroy and Chambers.
Defendant Jermaine Fernandez appeals from his conviction for conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2. He was sentenced to an eight year term of imprisonment, with a mandatory eighty-five percent period of parole ineligibility and the mandatory monetary assessments. We affirm.
On February 4, 2004, Robert Sierra, a/k/a "B.G." or "Baby Gangster," was found dead in a parking lot by a high rise building on Cherry Street in Elizabeth. Defendant was charged with first degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); third degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1(b)(1).
Three other individuals, Robert Leon, Mario L. Tello and Pedro Perez, pled guilty to conspiracy to commit aggravated assault pursuant to plea agreements and testified against defendant at his trial. Their testimony provides the following explanation of events.
Leon, an admitted seller of marijuana, employed defendant and Tello as drug runners. The victim Sierra had previously robbed defendant and Tello. In order to obtain retribution, Leon, Tello, Perez, and defendant decided to assault Sierra. Perez lured Sierra to the Cherry Street parking lot. Defendant, Leon, and Tello proceeded to that location where they attacked Sierra. The witnesses testified that shots were fired, and they fled. Leon, Perez, and Tello testified that Sierra was beaten and hit with a baseball bat. Perez did not identify the shooter, nor did he identify defendant, merely testifying that a third masked man had come with Leon. However, Tello and Leon identified defendant as the person who shot Sierra.
The medical examiner testified that Sierra was killed by a single gunshot wound to his head and that the gun had been jammed to his forehead when discharged. The medical examiner also found that Sierra had sustained a gunshot wound to his shoulder. Sierra also had abrasions to his left elbow and both knees, a crescent shaped mark on his left elbow, and bruising on his right wrist. Sierra had a black eye, but the medical examiner could not determine if it was caused by a blow to the eye or the gunshot to the head.
Defendant did not testify, but he presented the testimony of Angela Britt who testified that on the day of the killing, she was speaking to Sierra on the telephone when she heard a gunshot and the phone went dead. The jury found defendant guilty of conspiracy to commit aggravated assault, but acquitted him of the balance of the charges.
On appeal, defendant raises the following issues:
THERE WAS INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT OF CONSPIRACY TO ...