On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-09-03165.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 14, 2010
Before Judges Cuff, Payne and Waugh.
A jury found defendant guilty of murder, N.J.S.A. 2C:11-3a(1) and (2) (Count 1); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count 3); third degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Count 4); possession of a weapon (a firearm) for an unlawful purpose, N.J.S.A. 2C:39-4a (Count 5); unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Count 6); and certain persons not to have weapons, N.J.S.A. 2C:39-7a (Count 7). After merging Count 5 with Count 1, the judge imposed a term of life imprisonment subject to a No Early Release Act (NERA)*fn1 85% period of parole ineligibility of 63.75 years. Count 4 merged with Count 3, and the judge sentenced defendant to a concurrent ten-year term of imprisonment subject to a NERA period of parole ineligibility. On Count 6, the judge sentenced defendant on Count 3 to a concurrent five-year term of imprisonment. On Count 7, the judge sentenced defendant to a ten-year term of imprisonment, with five years of parole ineligibility, consecutive to the sentence imposed on Count 1. The appropriate fees, fines, assessments and penalties were also imposed.
Defendant's convictions arise from the September 3, 2006 shooting of two men, David Perez and Jose Maldonado, while they sat in a car outside a Crown Fried Chicken (CFC) on 24th and Federal Streets in Camden. Perez was pronounced dead at the scene and Maldonado was wounded.
At trial, in addition to the testimony of investigating police officers and medical experts, Maldonado and several other eyewitnesses testified. A description of the testimony of Maldonado, Zulma Rivera, and Jason Nettles is provided to present a full account of the events surrounding the shooting as it relates to defendant's argument on appeal that the omission of an aggravated manslaughter charge requires a new trial.
Maldonado testified that he drove to CFC with Perez on September 3 at about 1 a.m. after a night of drinking. Maldonado parked outside CFC and waited outside the car while Perez entered the restaurant for five to seven minutes. Maldonado saw Perez leave CFC arguing with defendant "over a girl." Defendant and Perez continued their heated conversation until a girl pulled defendant toward 24th Street. Maldonado did not remember if defendant and Perez "peace[d] up" (made amends). At that point, Maldonado and Perez followed defendant to the corner and saw him walk towards a house party on 24th street.
Perez and Maldonado returned to their car and waited with the windows down for their food; Perez sat in the driver's seat. Maldonado was "messing with the radio" and Perez was relating the argument he had just had with defendant when gunshots were suddenly fired through the open window on the passenger side of the car. Maldonado said it seemed like the gunshots were fired a few inches from his face.
When Maldonado looked at Perez, he saw a hole in Perez's neck with "blood coming out."*fn2 Maldonado was shot in his left arm and in his leg. These wounds caused permanent nerve damage and loss of use of his arm from his elbow to his fingertips.
Zulma Rivera, known as "Yari,"*fn3 and her friend, Nitza, were planning on attending a house party on the evening of the shooting and took a cab to the party location near 24th and Federal streets where they ran into defendant. Yari knew defendant because he had dated one of her friends for a few months, but she knew him as Pete. According to her, defendant wore a long white t-shirt underneath a black "hoodie."
A few minutes following her arrival at the corner, Yari left defendant and Nitza and walked to CFC to use the bathroom; Nitza followed shortly thereafter. Yari testified that Perez entered CFC while she was in the bathroom, engaged Nitza in conversation, and she joined the conversation because she remembered Perez from school. According to Yari, while she and Nitza were in the midst of this conversation, defendant walked in and started talking to her. Perez and defendant started arguing because defendant thought Perez made a negative comment to him. Yari did not hear Perez say anything to defendant. Defendant jumped up and "pushed himself towards [Perez]" as if he was trying to scare him. Yari pulled defendant back and told him to calm himself.
Yari stated she stayed between defendant, Perez, and Nitza, but that defendant "wouldn't just leave it alone" and "kept making little comments about how that's his hood and he could do what he want[s]." Perez and defendant approached each other again as if they were going to fight. Yari grabbed them both by their shirts and pushed them away from each other. Yari testified that as they all left CFC, she grabbed defendant by his hoodie and walked with him out of the store in an effort to calm him.
Yari further testified that when she first encountered defendant that evening, he showed her a gun. She was concerned about defendant's anger because he was armed. Once defendant and Perez were in the street, however, she saw defendant and Perez shake hands, hug, and apologize. She thought the two had resolved their dispute. Perez got into ...