On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-06-1851.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa, Kennedy and Guadagno.
Defendant appeals from his sentence and convictions for first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2); second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39- 4(a)(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1). We affirm.
Nicholas Syders was shot to death on November 22, 2007, as he sat in the driver's seat of an automobile with Steven Goldsboro. Syders tried to drive off as he was being shot. The car accelerated, crossed a parking lot and the street, crashing into the wall of a brick building. Goldsboro jumped from the car before the crash, shattering his left knee cap when he hit the ground.
Goldsboro was still at the scene when Officer Luis Sanchez of the Camden Police Department arrived. Initially, Goldsboro denied seeing anything. Then, he told Sanchez that he and Syders were sitting in the car in the parking lot when a black male wearing all black clothing and a black ski mask covering the lower part of his face began firing a handgun in the direction of the rear windshield. Goldsboro told the police that the assailant was unknown to him but subsequently admitted he knew the identity of the shooter.
Goldsboro had to have knee replacement surgery and was hospitalized for a week after the shooting. He was contacted by an investigator, James Bruno, from the Prosecutor's Office but still did not admit he knew the identity of the shooter. After his release from the hospital, Goldsboro was approached by Joanne Syders, Nick Syders's mother, who was working with the Prosecutor's Office to find the person who killed her son. She asked Goldsboro to tell her what happened and recorded their conversation. Goldsboro eventually admitted to her that the shooter's name was Rich and described some of the areas where Rich might be located. The following day, November 30, 2007, Goldsboro gave a taped statement at the Prosecutor's Office in which he indicated that the person who shot Syders on Thanksgiving night was the man he knew as "Rich" who had been in a fight with Syders at the Nice Little Bar weeks earlier. When Investigator Bruno showed Goldsboro a photograph of defendant, Goldsboro confirmed that defendant was "Rich."
That summer, months after he provided this statement, Goldsboro received threats directed not only at him but at his family. One of the people who approached Goldsboro about changing his statement was "Boo-Bop," the brother of defendant's girlfriend, Ronnet Brown, known as "Mom-Mom." Arrangements were made for Mom-Mom to pick up Goldsboro and drive him to the office of the lawyer who represented defendant at the time to give a new statement that changed his account "so [defendant] can get away." Goldsboro testified that Mom-Mom remained in the room while a defense investigator taped the statement.
Goldsboro signed a written statement on that date, July 7, 2008, indicating that he "saw the shooter that killed Nicholas and it was not Richard Barge." Goldsboro stated he provided this statement because he "was scared" by the threats and believed that if he recanted his earlier statement implicating defendant, nothing would happen to his family. He testified that the July 7, 2008 statement was untrue and explained he provided it only "[t]o protect [his] family."
Approximately one year after Goldsboro recanted his identification to the defense investigator, Investigator Bruno conducted a second, taped interview of him. Goldsboro explained his reasons for providing the July 7, 2008 statement to the defense investigator and indicated that this statement was not true; he reiterated that it was in fact defendant who shot Syders on Thanksgiving night.
At trial, Goldsboro testified further that he first saw the gunman standing approximately two to three feet away from the driver's side of the car. He recognized the gunman as defendant, with whom he was acquainted. Although defendant was wearing a hoodie with the hood pulled over his head, the area was brightly lit and Goldsboro "could still see [his] face." Goldsboro explained that he did not initially identify defendant because he was afraid for himself and the safety of his family.
Two inmates housed with defendant at the Camden County Jail also testified at trial. Jamal Gibbs was incarcerated following his guilty plea to second degree manslaughter, and housed in a cell across from defendant. Andre Munday, who had pled guilty to aggravated manslaughter, had a cell next to defendant's cell. Both Gibbs and Munday admitted they hoped their cooperation would reduce the sentences they would receive.
Gibbs testified that he considered defendant an "associate" whom he met through another acquaintance. Gibbs testified that he and defendant were able to communicate with each other through hand signs and, on occasion, by speaking for short periods of time. According to Gibbs, defendant communicated to him that he approached or "checked" Nick Syders at a bar and that the two of them "had words" and it got "heated." When defendant was later shot, defendant believed that "it was Nick [Syders's] work." On Thanksgiving, somebody called defendant and told him that Nick was at the Off Broadway bar downtown. Defendant went there and "got at" Nick when he was in a car. Since there were other inmates around when he and defendant were "signing" to each other, Gibbs explained that "you don't want to come out and say I killed him. You want to say I got at him."
Gibbs testified that defendant also verbally confirmed this information, telling Gibbs that he "got shot and he believed Nick did it or had something to do with it and he got down at Nick at Off Broadway." Defendant advised Gibbs that he "hit him up when he was in a car[,]" which Gibbs explained meant that defendant "shot him as he was in the car."
When asked whether defendant told him anything else about what happened, Gibbs testified that defendant told him that Nick's car "crashed." Gibbs further testified that defendant said, "Somebody told on me" and that he would find out who it was when he received his discovery. Later, defendant told Gibbs he "found out who the witness was" and that it was someone named Steven who was in the car with Syders. Defendant also indicated to Gibbs that he would "just [get] Mom-Mom . . . to give [Steven] 15 grand . . . to change his statement."
Munday testified he was "affiliated with a gang called the Bloods" and that since everyone in the next cell, with the exception of defendant, was also a Blood member, he "eventually . . . [got] to know" defendant, who told Munday about his case. Specifically, defendant told Munday that it "involved  a little situation with some guy named Nick[,]" who had gotten into "a little beef" with defendant and "some guy named Lid" and that defendant got shot "not too long after that." Munday testified that someone alerted defendant to Nick's location and when he arrived there, defendant saw Nick get in a car with someone defendant did not know. Defendant ran up to the car and as soon as Nick started his engine, "Rich shot him." The car eventually "wrapped around a pole or tree or something" and defendant "ran off." Munday said the other person in the car with Nick was named "Steve." When asked whether it was "common to talk about cases in jail[,]" Munday responded that it was okay to talk freely among members of the Bloods gang because if you give a statement or you testify against somebody, you're a target. Your life is in danger.
That's it. . . . As soon as they get the chance . . ., they're going to kill you.
Munday testified that it took him several months to decide whether to cooperate with the authorities. Among other reasons, he was afraid he would be beaten up by the other inmates, and he did not want to be called a "snitch," which would "dirty" his name.
Defendant testified and denied he killed Nicholas Syders or had any knowledge of the crime. He stated that he was at the apartment of Vanessa Brown, his girlfriend's mother, for Thanksgiving dinner, arriving at approximately 3:00 p.m. At approximately 7:00 p.m., he and Mom-Mom left the apartment for a very short time to take his son back to his son's mother's home. He testified that he left with Mom-Mom and her two children about thirty to sixty minutes after dinner and returned to their apartment, where he remained the rest of the night. Although defendant could not recall the exact time, he said it was probably after 10:30 when they left. As defendant acknowledged on cross-examination, this testimony was inconsistent with prior statements he had given in which he stated he stayed at Vanessa's apartment until he left at 9:00 or 9:30.
In addition to defendant, three witnesses testified on defendant's behalf: defendant's girlfriend, Mom-Mom; her mother, Vanessa Brown; and Mom-Mom's fifteen-year old daughter. All three women testified that defendant had Thanksgiving dinner with them at Vanessa's apartment at approximately 10:00 p.m. that night and that, except for leaving for a few minutes at approximately 6:00 or 6:30 p.m. to drive his son home, defendant was at the apartment from the late afternoon until approximately 11:00 p.m. or midnight.
Defendant denied ever meeting Steven Goldsboro and stated that the "first and only time" he ever saw Goldsboro was when Goldsboro testified. He also denied knowing Jamal Gibbs or Andre Munday, although he acknowledged that he had seen Munday "on the tier" at the jail. He stated that Gibbs and Munday were lying when they testified that he admitted his involvement in Syders's death and maintained that he had "no idea" what all three of them were "talking about."
Defendant acknowledged that he and Mom-Mom were at the Nice Little Bar at about 9:00 p.m. approximately three weeks before the homicide. While there, Mom-Mom introduced him to Nick Syders, whom she considered her cousin. He admitted that he and Nick had "words" but denied it ever got physical. Defendant also testified that he was shot after the incident with Nick Syders at the Nice Little Bar.*fn1
The jury convicted defendant on all charges. The court merged count two (second-degree possession of a weapon for an unlawful purpose) with count one (first-degree murder) and sentenced defendant to fifty years imprisonment with 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one; four years imprisonment on count three (third-degree unlawful possession of weapons), and seven years imprisonment with five years parole ineligibility on count four (second-degree certain persons not to have weapons). The sentences imposed on counts three and four were concurrent to each other and consecutive to the sentence imposed on count one. ...