On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 07-11-0768.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2012 -
Before Judges Ashrafi and Fasciale.
At the age of eighteen, defendant Seth Cooper killed another young man by bringing a gun to a planned fistfight and then firing it. At his trial, the jury found him not guilty of homicide and aggravated assault charges, apparently accepting his defense that he fired the fatal shot in self-defense. He now appeals from his conviction by the same jury on weapons and other related charges. He also challenges as excessive his aggregate sentence of fourteen years imprisonment with five-anda-half years of parole ineligibility. We affirm defendant's conviction and sentence, except that we remand for correction of a relatively minor aspect of the sentence.
In July 2006, defendant Cooper and his girlfriend broke up, and she began dating Ernest Dominguez. According to defendant, he still saw his ex-girlfriend regularly. As a result, defendant and Dominguez grew increasingly hostile to each other. On December 10, 2006, the two agreed to meet in a cemetery in Middle Township for a one-on-one fistfight. That evening, however, each brought confederates and a weapon to the fight.
Dominguez arrived with two friends, John Cavicchio and Charles Griggs. He also put a large knife in his back pocket and gave Griggs a tire iron in case they "got jumped." Defendant went to the fight with his older brother, Riley Cooper, and a friend, Raymond Fryar. The previous week, defendant had purchased a .32 caliber revolver, which he had placed under the seat in the car he drove to the cemetery. Defendant and his confederates arrived first, and he put the loaded gun in his waistband as he got out of the car to wait for Dominguez.
When the others arrived, defendant and Dominguez confronted each other, exchanging insults and threats. Dominguez took the knife from his pocket and threatened to cut or stab defendant. In response, defendant pulled the revolver from his waistband, and he fired one or two shots. The evidence was in dispute as to whether the gun was pointed upwards to fire a "warning shot" or toward Dominguez. After defendant fired the gun, Dominguez and his friends ran toward their vehicle.
Defendant chased Dominguez with the revolver in hand, yelling insults. Griggs and Cavicchio reached their vehicle and began to drive it toward Dominguez and defendant. According to testimony at trial, which was corroborated by police investigation after the incident, the vehicle came "racing" down the road and veered onto the shoulder toward defendant. Defendant fired his gun at the vehicle, and it came to a stop nearby. The driver, Cavicchio, was shot in the right side of his head.
Defendant ran back to his car. He told Fryar: "they tried to run me over, so I shot at the car." Defendant and his confederates fled the scene. A short time later, Riley Cooper hid the revolver in the woods at defendant's request. That night defendant and Fryar stayed in a motel room in Atlantic City, and the next day, they took a train to Philadelphia. The following day, they learned that Cavicchio had died, and defendant fled to South Carolina.
Three days after the shooting, police found a .32 caliber revolver hidden in the woods, and they later matched the revolver to the bullet removed from Cavicchio's head. The police tracked defendant to South Carolina and arrested him there less than two weeks after the shooting.
In November 2007, a Cape May County grand jury returned a nine-count indictment against defendant and three of the other men involved in the incident. Defendant was charged in five of the counts: (count one) murder, first-degree, N.J.S.A. 2C:11-3a(1), -3a(2); (count two) attempted murder, first-degree, N.J.S.A. 2C:5-1, 11-3a; (count three) possession of a .32 caliber revolver with a purpose to use it unlawfully against the person of another, second-degree, N.J.S.A. 2C:39-4a; (count four) unlawful possession of the .32 caliber revolver without a permit, third-degree, N.J.S.A. 2C:39-5b; and (count seven) hindering prosecution by concealing and tampering with evidence, third-degree, N.J.S.A. 2C:29-3b(1).
Defendant's trial before a jury lasted eleven days. The jury acquitted defendant of the murder and attempted murder charges in counts one and two. It also acquitted him of lesser-included offenses of aggravated manslaughter, passion-provocation manslaughter, and aggravated assault under counts one and two. The jury could not reach a verdict on a lesser-included offense of reckless manslaughter, N.J.S.A. 2C:11-4b, under count one. The jury found defendant guilty of the lesser-included disorderly persons offense of simple assault under count two, N.J.S.A. 2C:12-1a(3), apparently for threatening the others with the gun. It also found him guilty of the second-and third-degree weapons charges of counts three and four of the indictment and the third-degree hindering charge of count seven. After the trial, the State voluntary dismissed without prejudice the lesser-included offense of reckless manslaughter.
The trial court held a sentencing hearing on August 4, 2009. Placing detailed reasons on the record, the judge sentenced defendant as follows: seven years in prison on count three, the second-degree charge of possession of the revolver for an unlawful purpose, with three-and-a-half years of that sentence to be served before eligibility for parole; a consecutive term of four years in prison on count four for third-degree unlawful possession of the handgun without a permit, with two years of parole ineligibility on that count; a consecutive three-year term of imprisonment on count seven for third-degree hindering prosecution; and a concurrent term of ninety days incarceration on the lesser-included disorderly persons charge of simple assault under count two. Defendant's aggregate term of imprisonment was fourteen years, with five-and-a-half years before eligibility for parole.
On appeal, defendant raises the following arguments:
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL FOLLOWING TESTIMONY GRATUITOUSLY VOLUNTEERED BY A CRUCIAL STATE'S WITNESS ATTRIBUTING PRIOR ASSAULTIVE CONDUCT TO THE DEFENDANT DESPITE THE TRIAL COURT'S EXPRESS ADMONITION TO HIM PRIOR THERETO NOT TO TESTIFY TO SUCH INFORMATION.
THE TRIAL COURT ERRED BY FAILING TO MERGE THE DISORDERLY PERSONS OFFENSE OF SIMPLE ASSAULT ARISING OUT OF COUNT II INTO COUNT III CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
A. THE TRIAL COURT ERRED IN ITS ASSESSMENT OF THE RELEVANT AGGRAVATING AND MITIGATING FACTORS.
B. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING THE MAXIMUM POSSIBLE PAROLE DISQUALIFIERS IN CONJUNCTION WITH THE BASE ...