On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-08-2800.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2012
Before Judges Reisner, Simonelli and Hayden.
Defendant Kaseem Camel appeals from his conviction for aggravated manslaughter, N.J.S.A. 2C:11-4a(1); aggravated assault, N.J.S.A. 2C:5-1 and 2C:12-1b(2); unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and certain persons not to have weapons, N.J.S.A. 2C:39-7b. He also appeals from the aggregate sentence of fifty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On the evening of November 29, 2006, someone shot three men (John Mumford, Dale Fisher and Sheldon Oaks) in the courtyard of the Grace Manor West townhouse complex in Newark.*fn1 Mumford died after being shot four times. Fisher and Oaks recovered and later identified defendant as the shooter. However, at his trial they repudiated those identifications.
The police found an assault rifle and thirteen matching shell casings on the ground not far from the scene of the shooting. They also found a small handgun, which Oaks admitted was his. There was no dispute that Mumford's death was a homicide. At issue were the identity of the shooter and the shooter's degree of culpability. After several days of deliberations, the jury acquitted defendant of murder but convicted him of aggravated manslaughter of Mumford and two counts of aggravated assault on Fisher and Oaks.
On this appeal, defendant raises the following points for our consideration:
POINT I: THE TRIAL COURT ERRONEOUSLY OPTED TO REPLACE A JUROR WITH A SUBSTITUTE TOWARDS THE END OF A 10 DAY DELIBERATION PROCESS INSTEAD OF GRANTING A MISTRIAL OR, ALTERNATIVELY, REQUIRING THE REPLACED JUROR TO CONTINUE TO SERVE; FURTHERMORE, IT ERRONEOUSLY FAILED TO GRANT A MISTRIAL ON THE MURDER COUNT WHEN ONE JUROR ADVISED THE COURT OUT OF THE PRESENCE OF THE OTHERS THAT SHE COULD NO LONGER DELIBERATE ON THAT COUNT AND HER SUBSEQUENT DELIBERATIONS APPEARED NOT TO BE AN EXERCISE OF HER FREE AND UNTRAMMELED WILL.
POINT II: DR. PEREZ'S ADOPTION AND RECOUNTING OF THE AUTOPSY FINDINGS OF THE MEDICAL EXAMINER BASED ON HER REVIEW OF THE EXAMINER'S AUTOPSY REPORT CONSTITUTED THE PRESENTATION OF INADMISSIBLE HEARSAY (NOT RAISED BELOW).
POINT III: THE TRIAL COURT ERRED BY NOT CHARGING MANSLAUGHTER AS A LESSER-INCLUDED HOMICIDE OFFENSE OF AGGRAVATED MANSLAUGHTER (NOT RAISED BELOW).
POINT IV: THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE. POINT V: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
In a supplemental pro se brief, defendant raises the following points:
POINT I: THE TRIAL COURT ERRED IN NOT CONDUCTING A PRE-TRIAL HEARING ON THE ISSUE OF IDENTIFICATION OF THE DEFENDANT, AS THE IDENTIFICATION OF THE DEFENDANT WAS IMPERMISSIBLY SUGGESTIVE AND IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW (PARTIALLY RAISED BELOW).
POINT II: THE TRIAL COURT ERRED IN PERMITTING SHELDON OAKS TO TESTIFY AS A STATE'S WITNESS WHILE APPEARING IN PRISON GARB, HANDCUFFS AND LEG SHACKLES (PARTIALLY RAISED BELOW).
POINT III: THE PROSECUTOR'S COMMENTS DURING SUMMATIONS WERE IMPROPER AND DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND XIV;
N.J. CONST. (1947) ART. I, PARS. 1, 9, AND 10 (NOT RAISED BELOW).
Having reviewed the record, we conclude that all of defendant's challenges to his conviction are without merit and we affirm the conviction. We remand, however, for reconsideration of the sentence because the judge did not give a statement of reasons for the imposition of consecutive sentences under State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We also remand to ...