NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2012
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-11-1353.
Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah R. Terry, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).
Before Judges Ostrer and Kennedy.
Defendant appeals from the trial court's order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR) from his 2006 convictions by a jury of third-degree aggravated assault (significant bodily injury), N.J.S.A. 2C:12-1b(7); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-2a; third degree aggravated assault, N.J.S.A. 2C:12-1b(2); and second-degree and fourth-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7a and -7b. The certain persons offenses were charged in a separate indictment and tried immediately after the trial of the other charges. After merger, defendant was sentenced to an aggregate seven-year term with a three-year parole disqualifier on the convictions in the first indictment, consecutive to an eight-year term, with a five-year parole disqualifier, on the certain persons indictment. We affirm.
Defendant's convictions arose out of a shooting in Elizabeth. We reviewed the trial evidence in our opinion affirming defendant's convictions and sentence on direct appeal. State v. Jones, No. A-5090-05 (App. Div. Dec. 31, 2007), certif. denied, 194 N.J. 445 (2008).
On April 9, 2004, at around 10:20 p.m., Danielle Albano, was walking to her sister's house near Fifth Avenue and Broadway in Elizabeth. She heard a noise behind her, turned around and saw defendant running towards her with a gun. Albano turned and fled. While running, she heard the screeching sound of a car and five or six shots. Albano did not feel the first two shots. When she realized that she had been shot, she discovered wounds in her hip and both thighs. She also saw Jones enter a green Intrepid which had rounded the corner.
Albano called her brother on her cell phone to inform him that she had been shot. She stumbled to her sister's house and collapsed on the stairs. The police arrived and questioned Albano about the incident. She did not identify defendant as the shooter that evening because she was medicated, in pain and scared.
Albano had seen defendant on numerous occasions in the neighborhood and had three or four verbal encounters with him but knew him only as "Beefy." In March 2004, defendant told Albano that a "girl was looking for [her]" and he inquired about her sexual orientation. A week and half later, defendant stated to Albano, "get out of here before I smack the shit out of you." Defendant made the same comment to Albano a week later. Both incidents occurred when defendant was approximately five feet away from Albano.
A few months after the shooting, Albano informed the police that defendant had shot her. She testified that she was afraid of possible repercussions if she identified defendant as the person who shot her. Before visiting the police station, Albano testified that she learned defendant's real identity as a result of the police report obtained by her mother. After encouragement from her partner, Albano contacted the authorities to identify her assailant. At the police station, Albano gave a statement and identified Jones from an array of six photographs as the person who shot her. At ...