On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-10-0853.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Graves and J. N. Harris.
Defendant was convicted of murder and sentenced to life imprisonment with thirty years of parole ineligibility to be served consecutively to another sentence he was then serving. A conviction for possession of a firearm for an unlawful purpose was merged therein. On this direct appeal defendant asserts as plain error that aggravated manslaughter should have been charged as a lesser-included offense and that "the matter should be remanded for resentencing," because a parole ineligibility term of eighty-five percent was not imposed under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and, if it had been, the judge would not have imposed a life sentence. He further attacks what the judgment calls $5000 in restitution. We affirm the conviction, but remand for resentencing.
On the evening of August 10, 2006, Terrell Spruill, then fifteen-years old, was shot to death on a street corner in Franklin Township by a person in a passing car. At the trial, defendant did not contest that a "murder" occurred, and did not assert that any lesser-included offense should have been charged. Rather, he claimed he was not at the scene and did not commit the murder, and that the murder was committed by a third party, Tyrone Chiles.
Detective Patrick Colligan testified that when he arrived at the scene, he talked to Dyshon Reeves, a bystander, who was a possible eyewitness. According to Colligan, Reeves was "pacing and screaming" about how he was going to kill "M-Dot," which is defendant's street name.
Reeves testified that defendant, who he knew from the Grove area of town where Reeves used to live, was in the back seat of a car, and pointed a gun directly at him, as the car passed by. Upon noticing that the gun was pointed at him, Reeves "stepped back" and put his hands above his head. He stated he was not sure if it was defendant, but he heard someone in the car say, "that's Dyshon, that's Dyshon," and the car kept going.
Gary Marroquin also testified that prior to the incident he, Reeves, and Curtis Prescott were standing about five feet from the curb on the sidewalk of Victor Street in front of the victim's house. According to Marroquin, a car drove up the street at an average speed and slowed down upon approaching them. He saw defendant with "his whole body like up to his stomach . . . hanging out" of the passenger window of the back seat with what appeared to be a gun in his hands. At this point, Marroquin was not positive of what he heard but it seemed like someone inside the vehicle said, "nah, nah, like it seemed like they knew Dyshon," and realized it was him. Upon hearing this, defendant retreated back in the car and the car drove off.
Prescott also testified that a man leaned out the window of a passing car with a gun and, after hearing someone in the car say "nah, nah," the person pulled the gun "back in the car," and the car continued to drive down the street.
In the meantime, while the three men were standing on the sidewalk of Victor Street, Spruill and Jamyllah Booker had been talking at the nearby corner of Matilda Avenue and Mark Street. They were joined by Diana Williams. According to Booker, she, Williams, and Spruill had been talking for about fifteen minutes when she heard "three to four" gunshot "sounds." After hearing the shots, Booker, Spruill, and Williams all started to run. Booker testified that she stopped and turned around upon hearing Spruill say he had been shot.
Williams testified for the defense that she "bumped into" Spruill and Booker on the corner of Matilda Avenue and Mark Street, and joined their conversation. During the conversation, Williams noticed a car come around driving slowly, although she did not see who was in the car. According to Williams, after about five minutes, the car she had noticed earlier came around again. The second time around, the car "slowed down and then it stopped" at which point she heard four gunshots. In her statement to the police after the incident, Williams indicated that the shooter "reached out of the window of the car [from the chest up] and he shot" Spruill. Although she could ...