On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-12-1552.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2010
Before Judges Parrillo and Yannotti.
Defendant Jason Harrell appeals from an order of the Law Division denying his petition for post-conviction relief (PCR), and a subsequent order of August 22, 2008, denying his motion for reconsideration. We affirm.
Charged under an indictment with murder, N.J.S.A. 2C:11- 3(a)(1) and N.J.S.A. 2C:11-3(a)(2), and second-degree possession of a weapon with the purpose to use it unlawfully, N.J.S.A. 2C:39-4(a), defendant was convicted by a jury of the lesser- included offense of aggravated manslaughter, N.J.S.A. 2C:11- 4(a), and of the weapons charge. For sentencing purposes, the judge merged the weapons conviction with the aggravated manslaughter conviction, and imposed a thirty-year term subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Appropriate fees and penalties were also imposed. Defendant appealed and we affirmed the conviction, but remanded for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005).*fn1 State v. Harrell, No. A-1090-04 (App. Div. Nov. 2, 2006). The Supreme Court denied certification. State v. Harrell, 192 N.J. 480 (2007).
This criminal episode arose out of a confrontation between a group of young Hispanic males and a group of young black males during the early morning hours of August 24, 2003, on the corner of Welton and Hassert Streets in New Brunswick. We recite the facts as stated in our decision on direct appeal:
According to the State's proofs, at around 8:00 p.m. the evening before, Brian Weeks, defendant's longtime friend, had been involved in an altercation with an Hispanic male, Mario Carpio. Shortly afterwards, Weeks went to retrieve a gun he had earlier stashed away at a George Street home where he and defendant had been attending a barbecue. Weeks then went to 30 Welton Street, the home of his son's mother, and asked another friend, Tryshon Stokes, to hold the gun for him.
Sometime later, at around 2:00 or 3:00 a.m., Carpio and Weeks met again on Welton Street, this time amidst a crowd of about ten or fifteen Hispanic males and a group of black males standing across the street. Weeks and Carpio began arguing while a number of Hispanic men were in the middle of the street "swinging weapons and all that there stuff." They surrounded Weeks but there was no physical fighting between the two groups and Weeks was not injured in any way. The Hispanic males simply would not let Weeks leave.
By then, defendant had pulled up to the scene in a truck and observed the crowd encircling Weeks. When defendant approached an Hispanic male holding num chucks but "backing up" from him, Weeks told defendant to get the gun from Stokes. Defendant complied, left the scene and went to 30 Welton Street to retrieve the gun "to make everyone get away from the area and that was it." Stokes, in turn, was only too willing to relinquish the gun simply to "to get [it] out of the house."
Defendant returned to the nearby scene with gun in hand. He exited the truck, brandished the gun, and fired six to eight shots in Weeks' direction. One of the bullets struck Juan Gomez, an innocent bystander, in the chest, killing him.
After the shooting, defendant discarded the gun and fled in his truck. Another of defendant's friends at the scene, Malik Stokes, took the gun to 30 Welton Street, where Weeks wrapped it in a handkerchief and threw it into the backyard of 32 Welton Street where it was discovered by police. The next morning, defendant telephoned Weeks and arranged to meet in Asbury Park where the two boarded a bus to North Carolina later that day. They were arrested four days later. Meanwhile, at the scene of the shooting, four shell casings were located on Welton Street and one shell casing was stuck in the gun. Two bullets had struck a red Toyota parked on Welton Street and one bullet was recovered from the decedent during the autopsy.
Defendant offered a somewhat different version of the events at trial. Believing Weeks to be in danger from the encircling crowd, defendant "grabbed the gun from" Tryshon Stokes "to make everybody get away from the area . . . ." ...