On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-04-0212.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Fuentes and Gilroy.
Defendant Andre Bing-Jackson was tried before a jury and convicted of first degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and second degree robbery, N.J.S.A. 2C:15-1(a)(1), as lesser included offenses of murder, N.J.S.A. 2C:11-3a(1), felony murder, N.J.S.A. 2C:11-3a(3), and first degree robbery, N.J.S.A. 2C:15-1. The court sentenced him to an aggregate term of twenty-five years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirm.
We gather the following facts from the evidence presented at trial.
The State charged defendant, Paris Mann, Samuel Perry, and Donald Mann, Jr. with brutally attacking, robbing, and killing a man named Thomas King. All of the co-defendants were minors at the time they committed these offenses. On the State's motion, the Family Part transferred their cases to the Criminal Part, where all three agreed to plead guilty to lesser charges,*fn1 conditioned upon them testifying as witnesses for the State in the trial against defendant. The State's account of what transpired here is based primarily on the testimony of the three co-defendants and a woman named Kimberly Lovett.
On May 18, 2002, at approximately 8:00 p.m., the victim and Lovett were walking on Hobart Avenue in Trenton on their way to their neighborhood. According to Lovett, she dropped King off on the corner of Hobart and Olden Avenues because he wanted to stop for a drink before going home. As Lovett entered her house, she looked down the street and saw "what looked like a bunch of kids jumping around." She soon realized, however, that she was actually witnessing someone being assaulted. The assault occurred in front of 62 Hobart Avenue, approximately forty feet from where Lovett was standing.
From Lovett's vantage point, there were four assailants involved in the attack; three were near the victim's head and one was "towards where his feet were." Although she did not know the identity of the assailants, she described them as youths between the ages of fifteen and seventeen. At this point, Lovett began screaming at the attackers to stop; she also told her fiancé to call the police.
When the attack stopped, Lovett approached the victim, who was lying on the ground, and discovered it was Thomas King. She described him as unconscious and bleeding from his nose, mouth, and ears. King was transported to the hospital where he remained in a coma until he died on September 25, 2002. An autopsy concluded that his injuries were the result of severe head trauma and the medical examiner ruled his death a homicide.
The police investigation eventually focused on Perry, who ultimately admitted his involvement and identified Paris Mann and Donald Mann, Jr. as co-assailants. After their arrest, the Mann brothers and Perry named defendant as the fourth attacker, who Perry and Donald Mann, Jr. identified from a photographic array. Defendant was arrested thereafter.
Paris Mann testified that on the day of the attack he, Donald Mann, Jr., Perry, defendant, and two other youths were sitting on the front porch of 55 Hobart Avenue. As dark approached, defendant, who had been drinking, stated that he was going to beat up the next person to walk by. According to Paris Mann, defendant then threatened the others, saying that if they did not help him, he would beat them up.
At this point, King walked by where the defendant and his cohorts were gathered. Again, according to Paris Mann, defendant "directed" them to get off the porch; Paris grabbed King around the waist and "slammed him" to the ground. Defendant and Perry then began kicking King while Donald Mann, Jr. "went through his pockets." Paris Mann testified that the assault lasted from twenty to sixty seconds. After the assault, defendant allegedly said something akin to: "I just killed the mother-fucker. I don't care if I go to jail, I've been in jail before."
Donald Mann, Jr.'s testimony generally corroborated his brother's account of events. In addition, Donald claimed that while he was inside the house, he heard defendant instigate the others by calling them "pussies" and questioning their willingness to fight. Although he denied directly participating in the attack, Donald Mann, Jr. testified that, at ...