On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-05-1284.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2009
Before Judges Skillman, Fuentes and Simonelli.
A jury found co-defendants Raheem Venable and Malik Simmons guilty of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3(a)(1),(2); possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a). The trial court sentenced Venable to life imprisonment, subject to the sixty-three year and nine-month period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the murder, and a concurrent ten-year term of imprisonment for possession of a handgun without a permit. The court sentenced Simmons to a forty-year term of imprisonment, subject to the thirty-four year period of parole ineligibility mandated by NERA for the murder, and a concurrent five-year term for possession of a handgun without a permit.
The court merged defendants' convictions for possession of a weapon for an unlawful purpose.
Defendants' convictions were based on the death of Fahiym Phelps as a result of a shooting outside a bar in Irvington on the night of November 27, 2004. Before the shooting, Phelps was inside the bar with his brother, Sharif, and a cousin, Tashon Young. During that time, Phelps had a verbal altercation with Venable, which was witnessed by Sharif, Young, and the manager of the bar, Sean Dubose. The altercation was interrupted by Dubose, who had a security guard, Michael Gibbs, escort Venable outside the bar, while Dubose stayed inside with Phelps.
The bar closed approximately ten minutes later, at which time Phelps, Sharif, and Young walked outside, where they encountered Venable and Simmons, both of whom were armed with handguns. Defendants began shooting in Phelps's direction, discharging between six and ten bullets. Six of the bullets struck Phelps, causing fatal injuries.
After the crime, Sharif and Young identified both Venable and Simmons as the shooters from photographic arrays shown to them by the police. Sharif and Young also identified Venable and Simmons as the shooters at trial. In addition, although he did not witness the shooting, Gibbs identified Venable as the person who had the altercation with Phelps and was escorted out of the bar.
Neither Venable nor Simmons testified or presented any other witnesses in their defense.
Venable and Simmons have both appealed from their convictions and sentences. We consolidate the appeals.
[At the court's direction, the list of arguments presented by defendants has been omitted from the ...