On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-02-0161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2012
Before Judges Parrillo, Grall and Skillman.
Defendant was indicted for purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3(a)(1) or (2); possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); witness tampering, in violation of N.J.S.A. 2C:28-5; and various other offenses. Defendant's motion to sever the witness tampering charge was denied.
A jury acquitted defendant of purposeful or knowing murder but found him guilty of the lesser-included offense of aggravated manslaughter, in violation of N.J.S.A. 2C:11-4(a). The jury also found defendant guilty of possession of a handgun without a permit and possession of a weapon for an unlawful purpose. The jury acquitted defendant of the remaining charges, including witness tampering.
The trial court sentenced defendant to an eighteen-year term of imprisonment for aggravated manslaughter, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent four-year term for possession of a handgun without a permit. The court merged defendant's conviction for possession of a weapon for an unlawful purpose.
Defendant's convictions were based on a killing that occurred late in the afternoon on March 13, 2007. After Plainfield high school classes were dismissed that day, defendant went into a store with his friends Alteriq DeBerry, Ahmed Logan, Stanley Paul, and Antoine Gardner. Defendant and his friends were part of a gang, which was called "Arlington Avenue." After leaving the store, the Arlington Avenue gang saw members from the "116" gang, including Terrel Nevius (Scooby or Scoob), and Gerald Green, on the street. Arlington Avenue and 116 were rival gangs that had been quarreling for a number of years. As a result, when the two groups of gang members met that afternoon, the 116 gang began chasing the Arlington Avenue gang towards the Plainfield train station. A fire engine temporarily blocked the 116 gang's path, preventing them from following the Arlington Avenue gang.
After the fire engine passed, Green of the 116 gang saw defendant standing on the corner of Second Street with a gun. According to Green, defendant directed one shot at Nevius, who was leading the 116 gang. However, the shot struck a bystander, who subsequently died. Green was the only witness who claimed to have observed defendant fire the fatal shot.
After the shooting, the members of the Arlington Avenue gang ran away from the scene. DeBerry stopped on the street to talk to Haleem Jackson and Keroy Cousar. According to Jackson, DeBerry told him that "we was just bussing*fn1 at these  niggers." DeBerry then added, "I just laid one of the 116 niggers down." According to Jackson, DeBerry was holding a 9 millimeter handgun. Jackson recognized the gun in DeBerry's hands as defendant's because defendant had asked Jackson for bullets for the same gun a few days before the shooting.
A few weeks after the homicide, Jackson and DeBerry were together when Jackson asked DeBerry about the homicide. In response, DeBerry stated, "I was just bullshitting. I ain't do it. Jock [defendant] did it." Jackson informed the police of this conversation.
According to Jackson, about a year-and-a-half after the shooting, in October 2008, he was standing on a street with some friends when defendant drove past him, stopped, and drove back towards him. Jackson, sensing that "something [bad] was going to happen," began walking away, but defendant pulled up next to him and stated, "I should shoot you, you snitch ass nigger." As he said this, defendant had in his hands a gun and a "discovery" document indicating that Jackson had informed the police that defendant was the shooter.
In addition to Jackson's testimony, which will be discussed in more detail later in this opinion, and Green's identification of defendant as the shooter, the State also presented the testimony of T.F., a police informant to whom defendant made incriminating statements. According to T.F., he met defendant outside a tattoo parlor sometime around June 1, 2007, and "asked him did he catch a body, meaning a murder, and he said, yeah, I'm good, I'm not hot and then I was like all right." T.F. explained that defendant's statement, "I'm good," meant "he doesn't have any cop heat. Like, people in the street could know but he doesn't have any cop heat. He don't have anything to worry about."
T.F. reported this conversation to the Plainfield police, who outfitted him with a wireless transmitter that recorded two subsequent conversations he had with defendant. During a recorded conversation on June 5, 2007, defendant stated that he had been shooting at Nevius (Scooby) and hit the victim by mistake. Defendant told T.F.: "I want that nigger Scoob . . . that nigger hit my nigger in the leg on Arlington, yo."
On appeal, defendant presents the following arguments:
POINT I: THE FAILURE OF THE COURT TO SEVER THE WITNESS TAMPERING COUNTS FROM THE HOMICIDE COUNTS WAS ERROR.
POINT II: THE IDENTIFICATION TESTIMONY OF GERALD GREEN, BOTH IN COURT AND OUT OF COURT, SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE. (Not raised below).
POINT III: THE ADMISSION OF OTHER CRIME EVIDENCE WAS ERROR WHICH MANDATES REVERSAL OF DEFENDANT'S CONVICTIONS.
POINT IV: CERTAIN COMMENTS MADE BY THE PROSECUTOR DURING SUMMATION WERE GROSSLY PREJUDICIAL AND DENIED THE DEFENDANT A FAIR TRIAL. (Not raised below).
POINT V: THE ADMISSION OF CERTAIN HEARSAY EVIDENCE WAS IMPROPER AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO ...