On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-06-2254.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2009
Before Judges Wefing and Parker.
Defendant Luis DaSilva appeals from a judgment of conviction entered on August 4, 2004 after a jury found him guilty of first degree felony murder, N.J.S.A. 2C:11-3a(3); first degree murder, N.J.S.A. 2C:11-3a(1) and (2); first degree robbery, N.J.S.A. 2C:15-1; third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third degree receipt of stolen property, N.J.S.A. 2C:20-7.*fn1 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 against defendant arose out of an incident in the early morning hours of November 4, 2002, in which Felix Chininin, a twenty-year-old Newark cab driver, was shot in the head and killed, apparently during a robbery of a portable DVD player he had in his cab and the cab fare he had collected during his shift.
There were no eyewitnesses to the shooting but, shortly thereafter, a passerby who did not know Chininin saw him staggering in the street, his head bloody. The witness notified police, who responded immediately. Chininin was transported to the hospital where he died shortly thereafter. At 5:30 a.m. that morning, Chininin's cab was reported parked in a driveway in Elizabeth. A few days later, an anonymous caller to the cab company identified defendant as the shooter. The caller said she was a relative of defendant's.
Investigators ultimately identified defendant, who had in his possession Chininin's driver's license, wallet and the portable DVD player when he was arrested. Chininin was shot with a gun identified from ballistic tests as having been stolen from a Newark police officer who lived in the same building as defendant. Defendant had sold the gun to an acquaintance after the shooting. The acquaintance was subsequently arrested and linked defendant to the gun.
When he was arrested on May 4, 2003, defendant was staying at the Belleville Motor Lodge under another person's name. He was in possession of a Brazilian passport, credit cards and social security cards, all in the names of other people. He had also recently bleached his hair blond and was apparently preparing to flee to Brazil.
Defendant testified at trial and denied all of the allegations but did admit to sending his family to Brazil, stealing a passport and social security card, and changing his appearance.
In this appeal, defendant argues:
THE JURY INSTRUCTION ON REASONABLE DOUBT IMPERMISSIBLY DEVIATED FROM THE MODEL CHARGE SET FORTH IN STATE ...