On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-09-1595.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter, Carchman and Maven.
Defendant Agim Gjonbalaj appeals from his February 16, 2010 jury conviction of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1).*fn1
The judge sentenced defendant to ten years of imprisonment with an eighty-five-percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant challenges the trial court's denial of his motion for judgment of acquittal, as well as the trial court's decision to sentence defendant to the statutory maximum. Defendant also, for the first time on appeal, asserts that the trial court did not clearly instruct the jury regarding accomplice liability and that the jury's verdict was against the weight of the evidence. We affirm.
On the morning of November 7, 2007, Michael Marro, Jr., was found dead in his Jersey City apartment. Marro's head was bloodied, and the apartment was in considerable disarray. A safe was sitting immediately behind the front door, and broken glass and broken wine bottles were strewn about. At trial, Assistant Medical Examiner Dr. Lyla Perez opined that the cause of death was blunt force trauma as well as a gunshot wound to the head. Marro's injuries included abrasions and contusions to his face, chin, forehead, ear, back, and shoulder; bleeding inside the scalp; and a Y-shaped laceration to the forehead indicating Marro had been struck with an object.
Hudson County detectives and crime scene investigators collected various evidence from the scene, including a partially-burnt candle found on the living room floor, as well as swabs for blood stains and biological evidence. Samples were taken from, among other places, the outside door handle, the hallway closet door, the hallway, a sliding glass door, the television and the glass table top, though not all of these samples were analyzed. Theresa Nezezon, a forensic scientist with the New Jersey State Police, concluded that the swab from a blood stain on the outside door handle of Marro's apartment matched defendant's DNA profile.
The State elicited at trial the fact that certain items had been seized from Zia Berisha, Gjonbalaj's co-defendant, when Berisha was arrested following a motor vehicle stop at approximately 11:40 p.m. on November 6, 2007, the night before Marro's body was found. These items included: Berisha's clothing, upon which were blood stains and candle wax, as well as four wrist watches found on Berisha's person.
Vincent Desiderio, a forensic scientist with the New Jersey State Police, explained at trial that the wax from the candle on Marro's living room floor was "similar" in "composition" to the candle wax taken from Berisha's jacket. Nezezon further opined that two blood swabs taken from Berisha's jacket matched Marro's DNA profile. David Mercado, a local watchmaker, attested that he had known Marro for "[s]ix to eight years" and identified two of the watches seized by police from Berisha as belonging to Marro.
State's witness Jerry Hastaba, a good friend of Marro, said that he knew Berisha through Marro and had socialized with Berisha. On the afternoon of November 5, 2007, Berisha came to Hastaba's Manhattan store and asked Hastaba to get in touch with Marro for him. According to Hastaba, Berisha was acting "fidgety."
The State also introduced a surveillance camera video, which showed a red Lincoln Navigator pulling up to Marro's apartment complex at approximately 10:00 p.m. on November 6, 2007. Shortly thereafter, the video showed defendant and Berisha exiting the vehicle and entering the apartment lobby. Defendant was carrying a large, nearly empty bag at the time. A few minutes later, one of Marro's neighbors heard a gunshot. Berisha's phone records also showed that he and defendant exchanged numerous phone calls between 8:36 and 9:24 p.m. that same night.
After the State rested, defendant moved for a judgment of acquittal, which the court denied. Specifically, the court found that, "based on the evidence . . . , including all the DNA lab work, the medical examiner's conclusions and report, property that was recovered, given the benefit of all inferences, the jury could find both defendants guilty beyond a reasonable doubt[.]"
Defendant testified in his own defense and related the events surrounding Marro's death. He explained how he met Berisha and indicated that he sold marijuana "[o]ff and on" ever since graduating from high school in 1995, selling "full-time" starting in early 2005. Defendant met Berisha, whom he called "Zee," at a nightclub in 1999. Defendant and Berisha remained in contact for the next eight years. Notably, defendant and Berisha saw each other again in August 2007, after defendant called Berisha looking for marijuana to sell. Berisha indicated he had a supply that would be ready in the fall. Defendant made similar inquiries "[a] bunch of times" in the months following.
The shipment arrived on November 6, 2007. That night, Berisha and defendant met at a gas station in Elizabeth to make the exchange. Defendant "could tell like [Berisha] was on something." He thought Berisha was under the influence of oxycontin because Berisha's "face was a little droopy" and his fingers were stained ...