October 22, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WAYNE P. RUSSELL, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Burrell also observed defendant in possession of a gun. We disagree.
The decision to admit evidence deemed relevant is committed to the sound discretion of the trial court. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). That decision will not be overturned on appeal unless the admissibility of such evidence "was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). Here, the trial court referenced the relevant portion of Burrell's statement at issue:
THE COURT: The paragraph starts out "I know they have guns and I was in danger range. I was waiting to walk out with the crowd and go straight to my car. I left, picked up my son and drove him to Berkley Terrace. A friend of mine called me and said 'it's Father's Day, let's go have a drink.' I told him that I did not want to go to Plainfield, and he said 'let's go to the East Orange Club.' We went to the East Orange Club Rainbow. I was in the Club with one of my friends, looked outside and saw China, Locksley, Macho and Kevin. These were the same guys that had a problem with me at the cookout. I think they were tailing me, because they had the same clothes on from the cookout. They were not dressed up. When they came inside, China took a seat close to the door. The one they call Locksley was leaning up against the wall. It was like they positioned themselves to ambush me. My friend walked outside and saw Macho. Macho wanted to know what was going on. They told my friend not to hang with me, because I was an informer. My friend said that he was going to hang with me anyway. They told him that he was going to get shot, too. My friend said, 'okay, anything is anything.' China said to Locksley to give him the key. He ran inside [the] car to get a gun. They all got into the car and circled the block three times, but were not able to get a shot at us because we left quickly."
Although this statement did not specifically mention the pushing and shoving between the two men at the bar or that Burrell saw defendant with a gun, there was sufficient information contained in the statement to place the defense on notice that there had been a prior incident between the two men that was probative of defendant's animus towards Burrell. Hence, we find the trial court's decision to admit Burrell's statement to police was not "so wide of the mark that a manifest denial of justice resulted." Ibid.
Defendant's remaining argument is that the sentence was excessive. The court sentenced defendant to a seventeen-year period of incarceration on the attempted murder conviction and a consecutive seven-year sentence on the second-degree aggravated assault conviction, together with an eighty-five percent NERA parole disqualifier. We find this contention is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.
A trial court must employ proper legal principles and the final sentence must be based on "competent, reasonably credible evidence." State v. C.H., 264 N.J. Super. 112, 139 (App. Div. 1993), certif. denied, 134 N.J. 479 (1993) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). To prove that a fair balancing occurred, a trial court must describe the process it undertook to arrive at the final sentence. State v. Boyer, 221 N.J. Super. 387, 405 (App. Div. 1987), certif. denied, 110 N.J. 299 (1988) (citing State v. Kruse, 105 N.J. 354, 360 (1987)).
Here the trial court reviewed the record and listed the aggravating factors and mitigating factors it found determinative in its final sentencing decision. The court considered that defendant's prior record consisted of two prior drug-related convictions that resulted in the imposition of two probationary sentences. The court commented that the probationary sentences resulted in "the opportunity to reform. And what has resulted in those opportunities to reform is not reformation, but rather he has escalated his drug convictions to now [b]ecause he has a disagreement . . . to enforce his displeasure by now shooting a gun." Moreover, contrary to defendant's contention, he offered no evidence to support his position that incarceration would cause a hardship to his family, while the record revealed that he was in arrears of child support for one of his three children in excess of $20,000. Consequently, the court did not err when it failed to consider, as a mitigating factor, that incarceration would cause a hardship to his family. The court additionally observed that there were separate victims and other persons who were placed at risk by defendant's actions, justifying the imposition of a consecutive sentence on the second-degree aggravated assault. In short, nothing in the record tends to show that there was a clear error of judgment in sentencing defendant that shocks the judicial conscience. State v. Roth, 95 N.J. 334, 363-64 (1984).
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