On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-09-3492.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Baxter and Coburn.
Following a trial by jury, defendant Taron Hill appeals from his March 13, 2007 conviction on two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2) (counts one and two); second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four). On counts one and two, the judge imposed two consecutive thirty-year terms of imprisonment, with a thirty-year parole ineligibility period on each. He imposed a seven-year sentence on count three and a four-year sentence on count four, each one concurrent to the other and concurrent to the sentences imposed on counts one and two. The aggregate sentence was thus sixty years imprisonment, subject to a sixty-year parole ineligibility term.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE.
B. THE PREVAILING CASE LAW ON NEWLY DISCOVERED EVIDENCE.
C. SINCE THE PROFFERED TESTIMONY SATISFIED ALL THREE REQUISITE ELEMENTS OF THE PREVAILING STANDARD GOVERNING A MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE, THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION.
II. THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
III. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT III CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNTS I AND II CHARGING PURPOSEFUL/KNOWING MURDER. (Not Raised Below).
IV. THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY IMPOSING CONSECUTIVE 30 YEARS TERMS WITH 30 YEAR PAROLE DISQUALIFIERS ON COUNTS I AND II CHARGING PURPOSEFUL/KNOWING MURDER.
We reject the claims defendant advances in Points I, II and IV. We do, however, agree with the merger argument defendant presents in Point III and remand for the entry of an amended judgment of conviction merging count three with counts one and two.
Just after midnight on September 26, 2004, a gunman, whom witnesses described as thin, masked, and dressed in a black hooded sweatshirt and baggy black pants, approached a crowd at the corner of Thurman and Louis Streets in Camden and fired nine gunshots into the crowd. The intended target was Karah Moore, a local drug dealer, who escaped uninjured. Two women, one who was sitting in a nearby parked car, and one who was standing across the street, were fatally wounded.
Because no forensic evidence linked the bullets or shell casings to the perpetrator, the State's case principally relied upon the testimony of two eyewitnesses, who saw defendant fleeing the scene, and two jail inmates, who testified that defendant told them he had murdered the two women. The State's first witness was Harry Cabassa, who testified that he heard the gunshots while driving on Everett Street, and when he turned the corner, observed a tall man dressed completely in black shooting a gun. Although Cabassa did not see the gunman enter a vehicle, he did see a "[l]ittle gray" car and, suspecting that it might be carrying the shooter, followed it to Pershing Street. Cabassa saw the vehicle parked in front of the house where defendant lived with his grandmother and his brother, Anthony.
Wakita Saunders also testified to having seen an unusual gray or "silver" car that night. She first noticed the car parked across the street from her apartment on the night of the shooting. As she was about to insert her key into the lock on the ground floor of the building where she lived, Saunders heard gunshots and quickly ran up the stairs to her second-floor apartment. From the porch, she was able to see a man run around the corner from Louis Street onto Everett Street.
Saunders's description matched the description provided by Cabassa of the man he had seen firing shots. Saunders observed the man running and stuffing what appeared to be a gun into the waistband of his pants. When the gun fell to the ground, and the man stooped down to retrieve it, he glanced up and observed Saunders watching him. As Saunders retreated into her apartment, she saw the man enter the gray car.
According to Saunders, the gunman wore no mask and nothing other than the hood of his sweatshirt obscured his face. She recognized the man as someone she knew from the neighborhood where she had lived for years, although she did not know his name. Consequently, although she later identified defendant as the man she saw running from Louis onto Everett Street, she incorrectly referred to him as "Angie ...