On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-09-1315.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and St. John.
Following a jury trial, defendant Kamila Cason appeals from her conviction of one count of felony murder, contrary to N.J.S.A. 2C:11-3a(3), and three counts of second-degree aggravated arson, contrary to N.J.S.A. 2C:17-1a.
The trial judge merged the three counts of aggravated arson into the felony murder count, and imposed a forty-year sentence of incarceration subject to a No Early Release Act (NERA)*fn1
eighty-five percent parole ineligibility term on the felony murder count. Defendant is serving a term of forty years, thirty-four of which are subject to NERA. The appropriate fees, assessments, and penalties were also imposed.
The trial record reveals that at approximately 9:00 p.m. on June 4, 2005, defendant and Krystal Wesley began arguing when Wesley demanded that defendant settle a ten dollar debt. When defendant told Wesley she did not have her money, Wesley took a pack of cigarettes and a five dollar bill from defendant's pocket. The argument took place in Wesley's first floor apartment, in a two-family home at 262 Duncan Avenue, Jersey City. At the time, there were several other people in the apartment, including Wesley's young daughter and one of Wesley's friends, Shaymicha. The argument continued on the street outside of the apartment. Wesley grabbed defendant and unknowingly dropped her only key to her apartment. Wesley then left to go to a store and upon arrival realized she did not have her key. Wesley returned and asked defendant for the key, but defendant refused to return it until Wesley returned defendant's cigarettes.
Wesley told her friend Shaymicha to grab defendant. Her friend ran after defendant and defendant ran face first into a car, which caused her to faint and fall on the ground. Wesley and Shaymicha starting kicking her and left her unconscious. Subsequently, Wesley took her daughter, went to 320 Duncan Avenue where she found her brother, and asked him to watch her daughter.
Approximately twenty minutes later, defendant arrived at that location. The women resumed arguing on the street. Wesley went upstairs to her mother's apartment on the third floor at 320 Duncan Avenue. Sometime thereafter, defendant followed her and sought entrance to the apartment. Wesley's mother allowed defendant to enter the apartment. Once inside, she told defendant to leave and when she did not, she proceeded to punch defendant in the face. Defendant then stated "I'm going to kill that B." Wesley's friend then "slammed" defendant onto a coffee table. Wesley and her friend left the apartment while defendant remained on the floor inside. Defendant still had Wesley's key.
Approximately ten minutes later, while Wesley was outside her mother's apartment talking to her uncles, she saw defendant leave and begin "running around the project."
At approximately 11:35 p.m., Wesley's next door neighbor, Desiree Ortega, and her friend, Latoya Fuentes,*fn2 were sitting in Fuentes' car outside of 264 Duncan Avenue, talking and applying makeup before going out for the evening. Their attention was suddenly drawn to what Fuentes described as a "burst" of noise that sounded like a door opening. Fuentes stated that she saw someone coming out of 262 Duncan Avenue, "stumbling a little bit, in a rush." The person was carrying bags. She did not recognize the person who emerged from the doorway. However, Fuentes later identified that person as the individual whose picture appeared in The Jersey Journal. That picture was of defendant. Fuentes reiterated the photographic identification in court, but could not make an in-court identification of defendant. In an out-of-court proceeding, Ortega was able to identify the person as the defendant, who she knew as an acquaintance of Wesley, her next door neighbor. However, when asked if she could identify the defendant in-court as the person who she saw leaving the house, she responded, "not really." The prosecutor asked the court, "Could I have the defendant rise?" Defendant objected, and the court denied the request.
Ortega and Fuentes then began driving to Hoboken. Approximately five minutes after leaving Duncan Avenue, Ortega received a "frantic" telephone call from her niece, who was baby-sitting Ortega's four children that evening at 264 Duncan Avenue. The women quickly returned to find Ortega's house and the adjoining building, 262 Duncan Avenue, on fire.
In the meantime, Wesley and two friends were walking from 320 Duncan Avenue toward Wesley's apartment. Wesley observed smoke coming from her house. When she got to the front of her house, she saw defendant run into the house and then out of the house. Wesley asked defendant, "Why would you set my house on fire," to which defendant replied, "I didn't do it." Wesley, Shaymicha, and defendant then proceeded to fight.
Jersey City Police Detective Frank Caraballo was off-duty that night but happened upon the fire while driving in his personal vehicle. When he arrived at the scene, he saw smoke and observed Wesley and defendant fighting in front of the burning house. Caraballo observed emergency responders exiting the house carrying a small child, who firefighters were attempting to resuscitate on the hood of a car. The child was seven-week-old Lucas Gwinnett. Lucas and his brother, Jude, were sleeping in the upstairs apartment of 262 Duncan Avenue, when sometime before midnight, their mother, Jennifer Gwinnett, heard "banging noises" and noticed smoke in her hallway. Within minutes her apartment was engulfed in smoke. The family was pulled through their second floor window by firefighters. Jude suffered no injuries. However, Jennifer suffered third-degree smoke inhalation, and Lucas tragically died from carbon monoxide poisoning at the hospital later that night.
Arson Investigator Giacomo Antonicello arrived at the scene and inspected the interior condition of 262 Duncan Avenue shortly after the fire was extinguished. He noted there was evidence of fires ignited in several places in Wesley's ground floor apartment. Antonicello also found that all the stove top burners in the kitchen were turned to the "on" position and that there was debris intentionally piled on them. Antonicello concluded that a total of five separate fires were ...