On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-07-2487.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2010
Before Judges Parrillo and Ashrafi.
Defendant Zachary Cash appeals from an order of the Law Division denying his petition for post-conviction relief (PCR).
Retried by a jury, defendant was found guilty of first- degree aggravated manslaughter, N.J.S.A. 2C:11-4a and N.J.S.A. 2C:11-4c; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.*fn1 He was sentenced to a term of seventeen years subject to an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the manslaughter count and a concurrent term of eighteen months for unlawful possession of a weapon.
The remaining count, possession of a weapon for an unlawful purpose, was merged for sentencing purposes. We affirmed the judgment of conviction, State v. Cash, No. A-5759-01T4 (App. Div. November 6, 2003) (slip op. at 2), and the Supreme Court denied defendant's petition for certification, State v. Cash, 181 N.J. 544 (2004).
We recount the facts of the underlying criminal episode as stated in our earlier opinion affirming the judgment of conviction:
On the evening of April 7, 1999, Zachary Cash and several others were sitting around, drinking beer on the porch in front of a house on Taylor Street in Orange where Cash resided. Tina Wright and her 10-year old son were standing in the narrow street, talking with someone sitting in a car that was double-parked in front of the house. At approximately 8:00 p.m. the victim, David Hanson, came down the street in his pick-up truck and encountered the double-parked car. Chevelle Derrick, a next door neighbor, testified that Hanson waited for five minutes before becoming frustrated and pulling around the double-parked car. As he passed, Tina Wright, who was intoxicated at the time, shouted at Hanson to slow down, because her son was near the street. Hanson then stopped his truck and jumped out, cursing and threatening to kill everyone.
As he did so, he pulled a brown paper bag from his truck and raised it, keeping his right hand inside of the bag while cursing.
The people in front of the house told Hanson to leave, but he continued to curse with the brown bag still in his hand. Shamelle Wright, Tina Wright's sister, who lived in the Taylor Street house, called the police because she saw Hanson pulling a "shiny object" out of the brown paper bag and thought it was a gun. In response to Shamelle Wright's call, Orange Detective Tyrone Grundy arrived and stopped Hanson's car a block away. He spoke with Hanson and learned that there were peanuts in the bag. He then reported to Shamelle Wright that Hanson did not have a gun. She believed that the detective told her that Hanson had no gun but that he had a silver tool of some type in the bag and she conveyed this information to the others on the porch and in front of the house.
Approximately 10 or 15 minutes later, Hanson returned, angry because the others had called the police. He again got out of his truck, again yelling words in "Rastafarian"[,] as Cash described it in his statement to the police which was read to the jury, which none of the witnesses could understand.
According to Cash, he thought that Hanson might be armed and might be planning to harm him[self] or the others. He described an altercation that broke out involving Hanson and his friend James Lewter, who was Tina Wright's cousin, who was armed with an aluminum baseball bat. He admitted that he also was armed with an aluminum baseball bat and that he hit Hanson in the head with his bat during the fight that erupted when Hanson returned. One of the witnesses described that blow to Hanson's head as having been so hard that she heard a loud crack. Hanson then fell to the ground, bleeding profusely, and tried to roll underneath his truck. Accounts given by the witnesses varied about whether Cash continued to hit Hanson with the bat or ...