On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-01-0010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Hayden.
At approximately 1:30 a.m. on March 16, 2003, defendant, Girbron Parson, and his co-defendant, Lamont Thomas, attempted to rob at gunpoint an all-night convenience store located in Jersey City. The occupants of the store, its owner, Abdelmalek Rezkalla, and his son, Raimey Rezkalla, resisted. Raimey was assaulted, and Abdelmalek was assaulted and shot in the chest by defendant. He subsequently died. Defendant and Parson fled, but were discovered in hiding shortly thereafter by the police. Thomas confessed almost immediately, but defendant did not.
Both defendants were indicted for third-degree theft, N.J.S.A. 2C:20-3; first-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; first-degree armed robbery, N.J.S.A. 2C:15-1; first-degree felony murder, N.J.S.A. 2C:11-3a(3); first-degree murder, N.J.S.A. 2C:11-3a(1) or (2); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); second-degree aggravated assault, N.J.S.A. 2C:12-1b(2) and second-degree aggravated assault, N.J.S.A. 2C:12-1b(4).
On May 6, 1998, Thomas entered a guilty plea to armed robbery and an amended charge of aggravated manslaughter, N.J.S.A. 2C:11-4a, following an offer by the State of consecutive custodial terms of twenty years with seven years of parole ineligibility on each conviction. Additionally, he pled guilty to a charge set forth in a separate indictment of receipt of stolen property, N.J.S.A. 2C:20-7, the car used in the armed robbery, upon receipt of an offer of a five-year consecutive sentence. As a condition of Thomas's plea, he agreed to testify in accordance with his confession at any trial of defendant, thereby identifying defendant as a participant in the armed robbery and the person who shot Abdelmalek Rezkalla. At Thomas's plea allocution, the prosecutor incorrectly informed the trial judge that Rezkalla was shot in the head and the chest, when in fact, the autopsy report noted only that the victim had been shot in the chest.
On July 10, 1998, defendant also pled guilty to first-degree armed robbery and an amended charge of first-degree aggravated manslaughter, accepting the State's offer of thirty years in custody with fifteen years of parole ineligibility on the manslaughter charge and a consecutive sentence of twenty years in custody with ten years of parole ineligibility on the armed robbery charge.
The process of obtaining the plea was a drawn-out and contentious one. However, defendant eventually testified under oath that he and Thomas had entered St. George's Deli for the purpose of robbing the store. At the time, defendant was carrying a .38 caliber handgun. An older man and a younger man were present in the store. An altercation took place and, according to defendant, he "tried to pull the gun back, and a shot went off." The following exchange then occurred:
THE COURT: Shot him where?
THE DEFENDANT: I don't know.
THE COURT: How many fired?
THE COURT: What was the cause of death?
[THE PROSECUTOR]: Two shots, head and chest.
THE COURT: The autopsy indicates two shots fired.
THE DEFENDANT: Well, the only thing I could figure in his head was when I hit him ...