On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment, Nos. 06-08-1258 and 06-01-0046..
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2009
Before Judges Skillman and Fuentes.
Defendant Tyrone Emmons was tried before a jury and convicted of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4).*fn1 In a bifurcated proceeding, the same jury found defendant guilty of second-degree possession of a weapon by a person previously convicted of one of the offenses listed in N.J.S.A. 2C:39-7(a).
The trial court sentenced defendant to a term of eight years, with three years of parole ineligibility, for the conviction of second-degree possession of a firearm for an unlawful purpose. The court also imposed a term of seven years, with five years of parole ineligibility, for the conviction of second-degree possession of a handgun by a previously convicted person, to run consecutive to the eight-year term; this resulted in an aggregate sentence of fifteen years with eight years of parole ineligibility.
We gather the following facts from the record developed before the trial court.
In the early morning hours of October 26, 2005, Lisa Christofferson and a man known to her as "Rasul," subsequently identified as Melvin Hyman, were standing on the corner of Lee Avenue and Handy Street in New Brunswick when they heard what sounded like "firecrackers." According to Christofferson, Rasul suddenly told her to run; when she turned around, she saw a man running towards her repeatedly shooting his handgun "who didn't stop shooting." Christofferson continued running until she reached Baldwin Street, where she took refuge behind two parked cars.
The shooter eventually reached the area where Christofferson was hiding. Christofferson gave the following account of what transpired when she realized that the shooter had discovered her whereabouts:
As I was ducking he, I thought he had left, and he came up to the car, and I had a hood on my head. I took my hood off to try to show him I was a girl. I didn't know what was going on, you know. I started begging for my life and he started trying to shoot the gun but there were no more bullets left and he just said F. At this point Christofferson was able to look at her attacker "right in his face" and "[h]e looked right at [hers]." The assailant did not wear a mask and made no other attempt to conceal his face.
This experience left Christofferson emotionally traumatized. As she leaned against a wall and tried to regain her composure, Christofferson saw a passing police car with two officers inside. She immediately flagged down the police car and reported the incident to New Brunswick Police Officers Edward Bobadilla and Anthony Abode. Christofferson described the assailant as an African American man wearing a white shirt, black coat, black hat, black pants, and black boots.
The officers immediately radioed the assailant's description*fn2 to other police units in the area. They then invited Christofferson to ride in the police car to see if she could identify her assailant. According to Bobadilla, a few minutes later Officer Shah reported on the police radio that he had apprehended an individual matching the description given by Bobadilla. This individual proved to be defendant, who was detained riding a bicycle approximately two blocks from 162 Baldwin Street.
Christofferson, who was by then a passenger in Bobadilla and Abode's patrol car, arrived at the location where defendant had been detained and immediately identified him as her assailant. She indicated to the officers that the she was "a hundred percent positive" that the man in police custody was the person who had assaulted her approximately ten minutes earlier. She based her identification on the man's face and the clothing he was wearing. Christofferson could not provide a motive for the attack and no evidence of a motive was ever proffered to the jury.
Later, on the morning of defendant's arrest, a woman reported to the police that her six-year-old son had found a handgun in the backyard of her residence on Handy Street. The weapon was a .38 caliber revolver with two rounds in its cylinder chamber; the police did not detect any fingerprints on the handgun. Christofferson identified this handgun as the one used by the assailant.
Another resident of Handy Street testified to having heard shots during the night of the incident. In the morning, she found bullet holes in her car and in a sneaker box she had in the car's trunk. The bullet recovered from this scene was a .45 caliber round, which does not match the .38 caliber revolver found by the child in his backyard.
A resident of Baldwin Street testified that, on the morning after the alleged incident, she found a bullet on the passenger seat of her car that had caused the car's window to shatter. Ballistics tests performed on this bullet were inconclusive. A resident of Lee Avenue found bullet holes in her living room walls. A ...