On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-10-1117.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Fisher and Sapp-Peterson.
A jury convicted defendant of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) and (b)(2); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(3); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The court imposed an aggregate twenty-four-year custodial sentence with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT TESTIMONY PURSUANT TO N.J.R.E. 404(b) IN LIGHT OF THE STATE'S FAILURE TO ABIDE BY ITS DISCOVERY OBLIGATION TO PROVIDE SUCH INFORMATION TO THE DEFENSE IN A TIMELY FASHION.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
The conviction arose out of defendant's attempted shooting of a former friend (Burrell) while at a cookout in Plainfield on July 3, 2005. Instead of shooting Burrell, defendant shot and wounded another victim. He also fired a shot into the air. Witnesses testified to observing defendant with a gun. One witness heard two gunshots and observed defendant fire the gun in the driveway, and another witness observed defendant firing the gun in the direction of the crowd. Shortly after the shooting, Burrell provided a statement to police.
Prior to trial the court conducted a hearing, pursuant to N.J.R.E. 104, to determine the admissibility of testimony from Burrell regarding his prior relationship with defendant and a specific incident that occurred between the two men at an East Orange bar approximately one month before the July 3 shooting. The State sought to introduce this evidence as bearing upon defendant's "motive and purpose in seeking out [Burrell] in an effort to either hurt him, [and] if not, at the very least, threaten him." Defendant contended (1) the statement Burrell gave shortly after the shooting did not include any information about a prior confrontation between Burrell and defendant, and (2) the State failed to disclose this additional evidence in a timely fashion. Defense counsel argued that the court's decision to admit or exclude this evidence "could be one of the most important aspects of this whole case against [his] client . . . ."
The trial court rejected defendant's arguments and admitted Burrell's testimony about his prior relationship with defendant and the East Orange bar incident. The court found there was sufficient information contained in Burrell's statement to police, that placed the defense on notice of the earlier incident. Addressing whether the evidence implicated N.J.R.E. 404(b), prior bad acts, the court found that subject to certain portions of the evidence being sanitized, it satisfied the four-pronged test set forth in State v. Cofield, 127 N.J. 328, 334 (1992).
On appeal, defendant reiterates the argument advanced before the trial court that Burrell's statement to police shortly after the July 3 incident did not "remotely" suggest that he and defendant had engaged in a prior confrontation at an East Orange bar during which ...