On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-04-01363.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 27, 2010
Before Judges A.A. Rodriguez and C.L. Miniman.
Defendant Gregory Ulysse appeals from the denial of his application for post-conviction relief (PCR) in connection with his conviction on two counts of first-degree purposeful and knowing murder of Emmanuel Previllon and Edner Pierre, contrary to N.J.S.A. 2C:11-3a(1), (2); one count of second-degree conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and 2C:11-3; one count of second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and one count of third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b. Defendant was acquitted on one count of second-degree aggravated assault on Reginald Fils, contrary to N.J.S.A. 2C:12-1b(1). We affirm the denial of PCR in part and reverse in part.
The crimes in question began at a family barbeque on January 28, 2001, on Boyden Avenue in Maplewood. According to Fils, he and the murder victims, his friends, arrived at the barbeque at about 6 p.m. Fils had known defendant from the neighborhood for about four years and saw him at the barbeque. When defendant arrived with his girlfriend around 7:30 in the evening, defendant and Previllon became engaged in an argument during which defendant threatened to kill Previllon. Others broke up the argument, and defendant walked away only to return several minutes later with Steve St. Fleur and Fanshiyu Florexil. According to Andre Richmond, one of the men who broke up the argument, Florexil threw a punch at Previllon and pulled out a gun, which defendant took and shot into the air.
Florexil testified for the State and stated that he had witnessed the argument between defendant and Previllon. When he tried to intervene, Previllon told him that his mother was the problem. At that point, defendant slid a gun to Florexil, who struck Previllon in the head with it. Defendant then reclaimed the gun and shot it into the air, causing everyone to run.
Fils testified that he was walking to the grill to get food when he saw defendant return to confront Previllon. When a gunshot rang out, everyone scattered. Fils called out to Previllon, who confirmed that he had not been hit. Fils decided to leave with another friend, and they drove around Florence Avenue in Irvington until they met Previllon. They had all been invited to another party, but Fils's friend could not go. Fils got into Previllon's vehicle with Pierre and Richmond, and they drove to Kerrigan Boulevard in Newark.
Previllon parked his car, and the occupants went inside a house to the party. Because it was crowded and hot inside the house, they all stepped outside and were talking to Previllon, who was still angry, to calm him down. Previllon was looking for a gun but failed to obtain one. About forty-five minutes later, a Pathfinder pulled up with defendant in the front passenger seat. Defendant told Previllon to "meet him down the corner." Previllon wondered what defendant wanted, but Pierre was in a panic and wanted to leave.
Previllon walked to his car, Fils got into the backseat, and Pierre got into the front passenger seat. Richmond stayed at the party. Previllon pulled away from the curb, put his car into reverse, and drove back to the Pathfinder. Fils, looking out the back window, saw defendant get out of the Pathfinder and stand behind the door. At that point, Pierre yelled "gun." Fils put his head down and Previllon accelerated, but the car was still in reverse and hit the Pathfinder. Within seconds, shooting broke out. Pierre started coughing and was having trouble breathing. Previllon tried to exit his vehicle and began limping. Fils got out and ran away, only to trip and fall. Fils managed to get inside a driveway, but he heard the shooting continue. He stuck his head out a few times and saw the driver looking at the damage to the Pathfinder.
According to Richmond, although he saw people running and heard the crash and about ten gunshots, he could not tell who was doing what. He saw someone run after Previllon and then get back in the Pathfinder, at which time the Pathfinder left the scene. Richmond went to the scene and found both Pierre and Previllon dead.
Fils escaped through a backyard and found a cab driver on another street who took him to Tiffany Place. After some time passed, Fils returned to the scene on foot. The police had already arrived. Fils saw Previllon on the side of the street with a bullet hole in the side of his face.
According to Florexil, he, defendant, St. Fleur, and Edson Sainte, decided to drive to another party. They did not intend to engage in a gunfight. Florexil wanted to park his car, but they saw a crowd. Defendant told Florexil to stop as defendant signaled to someone. Florexil pulled down the street and found a parking spot. The occupants all exited the Pathfinder. As Florexil walked around the back of the Pathfinder to get on the sidewalk, he heard a car coming down the street, shots rang out, and he was hit before he could dive for cover. More shots were fired, and defendant exclaimed that he shot one of the other people. After the gunfire, defendant tried to help Florexil up. Florexil tried to dial 9-1-1, but defendant grabbed his cell phone and asked if he was crazy. Florexil saw St. Fleur holding another gun. His friends got him into the Pathfinder and drove him to the hospital.
According to Sainte, when they arrived at Kerrigan Boulevard, a white car backed up into the Pathfinder while they were trying to park. They all exited the Pathfinder, and Sainte began running when he heard gunshots. He heard nine or ten gunshots and then heard Florexil screaming in pain. After everyone was back in the Pathfinder, Saint observed defendant get in the passenger front seat and place a black gun next to the hand-brake. Defendant said, "I think I got one." St. Fleur said the same thing. After ...