On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-06-0790.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2009
Before Judges Wefing, Parker and LeWinn.
Defendant Keith Black appeals from a judgment of conviction entered on August 11, 2006 after a jury found him guilty of first degree murder, N.J.S.A. 2C:11-3a(1) and (2); first degree attempted murder, N.J.S.A. 2C:5-1 and 11-3; second degree aggravated assault, N.J.S.A. 2C:12-1b(1); third degree aggravated assault, N.J.S.A. 2C:12-1b(4); and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. After the appropriate mergers, defendant was sentenced to an aggregate term of forty-five years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The charges arose out of the shooting of two individuals on November 21, 2004. Defendant had an argument with Tyrone Fuller about their respective territories for selling illegal drugs in Jersey City. Defendant shot Tyrone in the back of the neck and Tyrone died within seconds. Tyrone's brother, Marquis, was present. Defendant chased Marquis and shot him in the lower back. Marquis survived the shooting and was taken to the hospital. Two days later, he identified defendant as the shooter and an arrest warrant was issued. Defendant was eventually arrested in Arizona, waived extradition and was returned to New Jersey.
In this appeal, defendant argues:
THE TRIAL JUDGE ERRED IN CHARGING FLIGHT TO THE JURY AS THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE INFERENCE THAT THE DEFENDANT'S ABSENCE WAS AS A RESULT OF CONSCIOUSNESS OF GUILT.
THE TRIAL JUDGE ERRED IN FAILING TO HOLD A HEARING AFTER A JUROR BEGAN CRYING DURING THE DISTRIBUTION OF PICTURES OF THE DECEDENT.
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Defendant first claims that the trial court erred in instructing the jury that flight could be inferred as consciousness of guilt. Prior to trial, the court indicated that it would not give a flight charge based upon evidence of defendant's arrest in Arizona. The State made ...