On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-05-0590.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Following a jury trial, defendant Enock Tellus was found guilty of first-degree murder, N.J.S.A. 2C:11-3a(1) and/or (2) (Count One); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three). On the murder conviction, defendant was sentenced to a forty-five year term subject to an eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Concurrent terms of four and seven years were imposed on the third and second-degree weapons offenses respectively. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs at trial, on the night of November 5, 2004, defendant shot and killed Clark "Biggie" Simon (Simon or victim) at the Oasis Bar in Elizabeth. The genesis of the homicide may be traced to encounters, weeks before the shooting, between defendant and Kareem Boyd, the victim's housemate, friend, and fellow drug dealer. According to Boyd, two weeks before the shooting, he met defendant in Jefferson Park, where defendant threatened to take over Boyd's drug-dealing territory. A week later, the two men became embroiled in a fistfight, wherein Boyd was badly beaten and facially scarred. Boyd related the incident to his friend Simon, who supposedly went looking for defendant to avoid further trouble and "peace things up," but could not find him.
On the evening in question - November 5th - Simon and Boyd were at the Oasis Bar, a neighborhood tavern with a regular crowd of local residents. There were about ten to twenty patrons in the bar. Jacqueline Quinones was bartending and the owner, Francisco Farinhas, and his son Alvaro, the assistant manager, were also present. Simon and Boyd were drinking and conversing with several of the patrons, including Veronica Thomas and Tawana Baker. Baker spent about thirty to forty-five minutes speaking with Simon about his friend, with whom she had been romantically involved. After their conversation, Simon moved to the other end of the bar.
About an hour after Simon and Boyd arrived, defendant entered the bar looking angry and bumped into Thomas on the way in. According to Thomas, who recognized him from the neighborhood, defendant immediately "sped" toward the bar where Simon was sitting. Within a few seconds, she saw defendant and Simon fighting. Thomas heard someone yell "he has a gun," and then heard shooting as she was halfway out the door.
Baker, who knew defendant for about a year, also witnessed the two men "tussling" by the interior wall. After only a few seconds, she heard a gunshot and saw Simon fall to the ground. Defendant then walked quickly past her with a black, nine millimeter gun in his hand, stating "f**k that n*****r" as he ran out of the bar.
Quinones, who recognized defendant as an occasional customer and had been attending to her bartending duties, saw defendant walk in right before the scuffle ensued, "maybe three, four second later." Although she saw Simon facing the wall during the fight, she was unable to see the other combatant because he was obscured by Simon's larger body. Upon seeing a gun pointed to the left side of Simon's head, Quinones dropped down behind the bar. When she heard a gunshot a few seconds later, Quinones managed to crawl to the kitchen and call 9-1-1. Quinones described what she observed:
I saw the back side of a big guy[, the victim,] and I saw a hand go up on the left-hand side facing the wall, and I saw a gun, and when I saw the gun I dropped to the ground behind the bar. Maybe, two seconds later I heard a gunshot and I proceeded to crawl to the end of the bar towards the kitchen.
When she came out of the kitchen, she saw Simon lying on the floor in a pool of blood. Except for the Farinhases, everyone left the bar, several of them screaming.
According to Boyd, when he saw Simon in a fight with defendant, whose back was against the wall, he ran over and punched defendant in the face. Boyd described the incident thus:
I had my back to the door. The female [I was talking to] was facing me. I was so in-depth in the conversation with her, you know what I mean, I had a few drinks... I hear scuffling in the background, like, tables moving, chairs moving. So I turned around to see what was going on and I see [the victim] had the defendant on the wall, and it looked like it was a fight, you know what I mean? My natural instinct kicked in. I jumped up, ran over there to help him. I seen who it was, as soon as I turned around, I noticed the altercation. So I jumped up, ran over there and I punched the defendant in the side of his face, not knowing that he had a gun, but the gun went off and [the victim] hit the floor.
According to Boyd, "[Simon] was struggling with [defendant]. I wouldn't say [Simon] had him pinned, controlling him.... [But] [h]e had him against the wall." Boyd further explained that the gun fired almost simultaneously with Boyd's punch to defendant's face: "[i]t seems like it was ...