On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1604.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Espinosa.
Defendant appeals from his sentence and convictions arising from a fatal shooting during the course of a robbery and a separate aggravated assault. We affirm.
The evidence can be summarized*fn1 as follows: On the evening of July 23, 2005, Jamar Smith encountered defendant Brian Richardson when defendant drove up to him in a green Honda Accord with Anthony "Scoop" Mitchell. Smith joined them in the car. They went to the Chris Anthony Liquor Store on Union Avenue in Paterson to buy cigarettes but left without a purchase because the store did not sell loose cigarettes. When shown video surveillance from the store that evening, Smith identified defendant and himself on the video and testified that, although he was unaware of the fact at the time, it appeared that defendant was holding a gun in the liquor store.
Smith and defendant then went into a neighboring restaurant to buy cigarettes. After leaving, Smith saw Levar McKay, whom he knew from school. As they were speaking, defendant came from behind McKay, grabbed him with one arm and put a handgun into McKay's side. McKay testified that when the gun was pointed into his side, he looked down and saw that the gun was a black revolver. Smith told defendant to "chill." Defendant stopped and said, "I didn't know you knew him[.]"
After this incident, Smith decided to go to the car to avoid further trouble and left defendant behind on the street.
The victim, Christopher Wilson, was walking home alone from the Moonlight Lounge in Paterson and called his girlfriend, Amy Parisi, at approximately 1:00 a.m. Because she was angry that he had been drinking, they were not having a conversation, but he maintained the telephone connection with her. As a result, she was able to overhear his conversation with a male whose voice she did not recognize. She heard that person say, "hey man, what's up[?]" and "why you walking away like you don't know me[?]" Parisi heard Wilson say, "what." The other person demanded, "give me your money." Wilson replied, "I don't have any money." Parisi then heard the other man say, "hurry up or I'm going to pull the trigger." She said, "Honey"; Wilson responded, "Honey, hold on," and the call ended.
Giselle Bulwin came upon the robbery in progress. She saw Wilson, with a cell phone to his ear, and a man she later identified as defendant,*fn2 pointing a gun to his right temple. She was approximately eight feet away when defendant turned to her and stated, "[L]ady, you'd better get out of here or I'll shoot you." As she walked away, she saw a tan car parked on the street with a stocky black man wearing a white tee shirt seated inside. She called 9-1-1 and reported that a black man was pointing a black gun to the head of a white man. She also provided descriptions of their clothing. During her testimony, Bulwin identified defendant as one of the individuals in the Chris Anthony Liquor Store video and stated that he appeared to be holding the same gun that she saw him with on the street.
There were three witnesses who observed the actual shooting, Lorelly Arevalo, Hector Ortiz and Angel Perdomo. Each of them described an argument or commotion between two men, one white and one black, at the corner of Redwood and Union Avenues. Perdomo testified that the black man said "Give me your money[,]" the white man mumbled something, and the black man said, "[G]ive me your fucking money." Each saw the African-American punch the white man. Perdomo testified that the black man had a gun in his hand when he hit the white man. Each saw the white man hit the black man and the gunshot that was fired immediately thereafter. Arevalo and Ortiz saw the white man hold his chest, run across the street and fall on the corner of Jasper and Union Avenues. Perdomo also saw the white man lying on the ground. Arevalo and Ortiz saw the black man run to a grey Honda Civic, which then left the area. After her call to 9-1-1, Bulwin also saw the car she had previously described, traveling on Union Avenue with both the stocky black man and defendant inside.
Smith was in the car with Scoop, telling him that defendant just tried to rob someone*fn3 when he heard a "boom" that sounded like a gunshot. He saw defendant run to the car with the gun in his hand and saw Wilson holding his chest. Scoop was going to leave defendant behind but relented. When defendant got into the car, they pulled away. Smith was angry with defendant. He was on parole and did not want to be charged with a new offense. He asked defendant why he did that. Defendant replied that "he hit me" and stated that he only got two dollars from the victim. Smith later left Scoop and defendant that evening. After being counseled by a clergyman, he went to the police and gave a statement.
Dr. Zhongyue Hua, of the Bergen County Medical Examiner's Office, testified as to his conclusions after performing an autopsy on Wilson. The cause of death was a gunshot wound to the chest from a gun fired at a distance of approximately one inch to two feet. The bullet was retrieved from Wilson during the autopsy. Dr. Hua also testified that Wilson was in a defensive posture when shot.
Defendant was indicted for the murder of Christopher Wilson, N.J.S.A. 2C:11-3(a)(1) and 3(a)(2) (count one); possession of a weapon with the purpose to use it unlawfully against Christopher Wilson, N.J.S.A. 2C:39-4 (count two); possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three); armed robbery of Christopher Wilson, N.J.S.A. 2C:15-1(a)(1)(2) (count four); felony murder of Christopher Wilson, N.J.S.A. 2C:11-3(a)(3) (count five); possession of a weapon with the purpose to use it unlawfully against Levar McKay, N.J.S.A. 2C:39-4 (count six); and aggravated assault of Levar McKay, N.J.S.A. 2C:12-1(b)(4) (count seven).
Defendant was convicted on all counts of the indictment. He was sentenced to sixty years incarceration, with 85% of that time to be served before he became eligible for parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the murder count; to a consecutive term of eight years with four-years of parole ineligibility on count six and to concurrent terms of eighteen years with 85% parole ineligibility pursuant to NERA on count four and five years with two and one-half years of parole ineligibility on count three. The remaining counts were merged.
In this appeal, he raises the following issues:
THE ADMISSION OF OTHER CRIME EVIDENCE WAS ERROR WHICH DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
TESTIMONY REGARDING THE INTERVIEW OF A NON-TESTIFYING WITNESS WAS INADMISSIBLE HEARSAY AND VIOLATED DEFENDANT'S RIGHT OF ...