On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-07-2419.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and C.L. Miniman.
Defendant Myron Hughley appeals from a March 26, 2007, order denying his petition for post-conviction relief (PCR) in connection with his March 22, 2002, conviction of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); second- degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b, under Indictment No. 99-07-2419. Defendant was sentenced to a term of ten years on the aggravated-assault conviction, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with three years of parole supervision; a term of ten years on the conviction for possession of a weapon for an unlawful purpose; and a term of five years on the conviction for unlawful possession of a weapon. These sentences were to run concurrently with each other and concurrently with the sentence he was then serving under Indictment No. 99-09-2948.*fn1
On direct appeal, State v. Hughley, No. A-5902-01 (App. Div. Dec. 1, 2003), we described the facts as follows:
The events giving rise to these charges occurred on January 19, 1999, when Norman Henderson encountered defendant on the street. Henderson knew defendant because he had previously purchased drugs from defendant. After his conversation with defendant, Henderson started walking home when he heard someone behind him. He turned around and saw defendant. Defendant took out a gun and fired a single shot, wounding Henderson in the chest, puncturing a lung and kidney. Henderson ran to the street, flagged down a car and was driven to University Hospital, where he was treated for the gunshot wound.
Henderson told police he knew defendant by the name of "Black" and, although he did not know where Black lived, he knew where the man hung out. The police showed Henderson a photo array, but he did not recognize his assailant. Henderson gave Detective Richard Flourney a verbal description, however, and when the detective subsequently saw a person on the street who fit the description, he detained him for questioning. This person was later identified as defendant. The detective added a photo of defendant to the prior array and showed it to Henderson, who then identified defendant as his assailant. Henderson also identified defendant at trial.
Defendant presented the testimony of Beatrice Washington, who said she was driving by during the shooting and that she knew defendant from school but could not identify him as the shooter. Defendant testified that he did not remember where he was that day but denied seeing Henderson, shooting him or ever selling drugs to him. Defendant acknowledged that when he was first questioned by police, he gave his name as Myron Hughley, which was not his actual name, because he knew that there were outstanding traffic warrants for him and did not want to go to jail. [Id. at 2-3.]
In his direct appeal, defendant raised four issues:
THE TRIAL COURT ERRED BY FAILING TO SUPPRESS THE VICTIM'S PRETRIAL PHOTOGRAPHIC IDENTIFICATION AS A RESULT OF THE FAILURE OF THE POLICE TO PRESERVE THE PHOTOGRAPHIC ARRAY.
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IV CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT II CHARGING ...