On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-11-3588.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2010
Before Judges C.L. Miniman and LeWinn.
Essex County Indictment No. 06-11-3588 charged defendant with first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1(b); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. All offenses charged in this indictment occurred on June 1, 2006.
Essex County Indictment No. 06-10-3392 charged defendant with second-degree conspiracy to possess cocaine with intent to distribute, N.J.S.A. 2C:5-2; third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3); third-degree possession of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7; third-degree unlawful possession of a nine-millimeter handgun, N.J.S.A. 2C:39-5(b); two counts of second-degree possession of a weapon while in the course of committing certain narcotics offenses, N.J.S.A. 2C:39-4.1; and third-degree unlawful possession of a .22-caliber handgun, N.J.S.A. 2C:39-5(b). All offenses charged in this indictment occurred on July 20, 2006.
On April 16, 2007, pursuant to a negotiated plea agreement, defendant entered guilty pleas to third-degree unlawful possession of a nine-millimeter handgun and third-degree unlawful possession of a .22-caliber handgun in Indictment No. 06-10-3392; the State recommended dismissal of all other counts in that indictment and a sentence of three years with an eighteen-month parole ineligibility period.
Tried to a jury on Indictment No. 06-11-3588, defendant was convicted of second-degree aggravated assault, third-degree unlawful possession of a handgun, and second-degree possession of a handgun for an unlawful purpose.
Defendant was sentenced on all charges on July 9, 2007. Pursuant to the State's motion, he was sentenced as a persistent offender under N.J.S.A. 2C:44-3. The judge imposed a term of seventeen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated assault charge; the two weapons offenses merged; and he received a concurrent five-year term for unlawful possession of a weapon. On that same date, defendant was sentenced pursuant to his plea agreement to two concurrent three-year terms, with an eighteen-month parole ineligibility period, on the third-degree weapons offenses under Indictment No. 06-10-3392.
Defendant's appeal relates only to Indictment No. 06-11-3588. The facts pertinent to that appeal may be summarized as follows.
Defendant and Dazjeanine Houston are the parents of a young son. They are not married and have no formal custody/parenting time arrangement in place. On June 1, 2006, the child, who was then not quite one year old, was with defendant. Houston called defendant to say that she wanted the child back, but defendant protested that it was too early to return the child to her. Houston asked her father, Darren Weathers, to drive her to defendant's house to retrieve her child. Two or three other individuals accompanied them.
Upon arrival at defendant's residence, Houston exited the car and engaged in a "fistfight" with defendant's sister and his girlfriend. During this fight, Weathers was attempting to take the baby away from defendant who was standing outside carrying the child.
Houston testified that defendant was holding a gun in his other hand and he pointed it towards the car. Weathers was standing between the car and defendant at that time. As defendant pointed the weapon, Weathers "pushed it." At this point, Houston was back in the car with the other individuals and they left the scene. As they were driving away, Houston heard two shots fired.
Weathers testified that on June 1, 2006, he drove his daughter to defendant's residence to pick up his grandson. Upon arrival, Houston exited the vehicle first and spoke to defendant. When Weathers heard defendant tell Houston that he would not give the child to her, Weathers got out of the car and asked defendant to give him the child.
Defendant hit Weathers in the face and Weathers hit him back. Weathers "threw two punches[,]" which caused defendant to "stumble and turn around, like he was going to fall." Weathers testified that defendant then "picked up a weapon" from "the grass[,]" which was "kind of high." Weathers described the weapon as "a long, black gun."
Upon seeing the weapon, Weathers "turned and ran." As he reached the corner, Weathers was shot in the back of his right leg. He fell to the ground and defendant and "some other people" came "running down the street[,]" and "jumped" him. Weathers heard defendant say, "This [is] for your daughter, it ain't over."
The sound of approaching police sirens caused the attacking group to disburse. Defendant was taken to the hospital where he eventually underwent surgery.
Later that evening, Police Detective James George spoke to Weathers at the hospital. Weathers was "highly medicated, but he was still awake . . . . He was a little groggy. So he was able to provide some information, but not a very clear and accurate detailed account of what had happened." George determined not to take a formal statement from Weathers at that time because of his medical condition.
At some point, Weathers was discharged from the hospital, came to police headquarters and identified defendant through a photo array. Based on that identification and as a result of his additional investigation, George issued a warrant for defendant's arrest for the shooting of Weathers.
On July 20, 2006, Police Detective Alfreddy Fletcher executed the arrest warrant at defendant's apartment. Defendant was sitting on a mattress when Fletcher encountered him. After placing defendant under arrest, Fletcher conducted a search; he looked under the mattress and found a .22-caliber rifle. The "rifle was immediately turned over to [the] [d]etective . . . who was the property in evidence detective for that day."*fn1
Defendant testified. He stated that Houston, Weathers and three other individuals came to his residence to retrieve his son. Fights broke out among some of the individuals including Houston, defendant's sister and his girlfriend. Defendant described everyone as "hyped up," adding that ...