On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-03-0605.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter, Nugent and Maven.
Following a mistrial caused by the jury deadlock, defendant entered a retraxit plea of guilty to amended counts one and three, second-degree criminal attempt and manslaughter --passion, N.J.S.A. 2C:5-1 and 2C:11-4b(2); and count two, second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a(1). He was sentenced to concurrent seven-year terms of imprisonment on counts one and three, each subject to the terms of N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA), and a three-year period of parole supervision. The court also imposed a concurrent five-year term of imprisonment on count two with a three-year period of parole ineligibility. The statutory fines, penalties and assessments were ordered, as well as $13,828.67 in restitution for the victim, Anthony Graves. Defendant appeals from a judgment of conviction. We affirm the conviction, but reverse the order of restitution and remand for a hearing on defendant's ability to pay.
The charges against defendant stem from a shooting during an altercation between Anthony and Brandon Graves and defendant. Defendant testified at trial and during his plea, that Anthony and Brandon Graves came to his home at 11:30 p.m. and challenged him to a fight over drug monies owed to them by defendant's mother. Before going outside, defendant retrieved a housemate's loaded revolver from an upstairs closet, and concealed it on his hip. During the ensuing altercation, as Brandon and Anthony each reached under their clothing to grab pistols, defendant shot them. The bullet that struck Anthony passed through his hand and lodged in his throat. As a result, Anthony lost a finger, and his throat and thyroid function were affected, necessitating significant medical treatment. The bullet that struck Brandon entered his right shoulder and passed through his spinal column, permanently paralyzing him from the waist down.
A jury trial was held over thirteen days and concluded with the trial court declaring a mistrial after the jury could not reach a verdict on counts one through four. The jury found defendant not guilty on counts five and six*fn1 and those charges were dismissed. Thereafter, defendant pleaded guilty, pursuant to a negotiated plea agreement, to amended counts one and three, second-degree criminal attempt and manslaughter -- passion, N.J.S.A. 2C:5-1 and 2C:11-4b(2); and count two, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a(1). Count four of the indictment was dismissed. Defendant's guilty plea allowed him to reserve all appellate issues.
Defendant raises the following contentions on appeal. POINT I:
IT WAS ERROR FOR THE TRIAL COURT TO ADMIT THE PHOTOGRAPHIC ARRAYS INTO EVIDENCE.
THE TESTIMONY OF INVESTIGATOR WILBERT OF THE MONMOUTH COUNTY PROSECUTOR'S OFFICE WAS GROSSLY PREJUDICIAL IN THAT IT WAS RIFE WITH HEARSAY, INNUENDO, INFLAMMATORY AND IRRELEVANT INFORMATION AND DEPRIVED ...