Submitted: November 14, 2013.
Approved for Publication September 5, 2014.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 06-01-0162.
Joseph E. Krakora, Public Defender, attorney for appellant ( Steven M. Gilson, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent ( Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges SAPP-PETERSON, LIHOTZ and MAVEN. The opinion of the court was delivered by SAPP-PETERSON, P.J.A.D.
[437 N.J.Super. 268] SAPP-PETERSON, P.J.A.D.
In these matters, calendared back-to-back as ordered by this court on August 8, 2012 and consolidated for purposes of opinion, defendant appeals from the May 13, 2011 ruling in which the court found the State " did not engage in impermissible discrimination in exercising its peremptory challenges."  The determination was rendered following a remand proceeding ordered by this court. Defendant also appeals from the sentence imposed following the remand hearing and from the September 30, 2011 order denying his petition for post-conviction relief (PCR).
Following our review, we are unable to determine from the record of the remand proceeding whether the State's exercise of seven of its nine peremptory challenges to excuse African-Americans was the product of impermissible discrimination as opposed to situation-specific bias because the court failed to engage in the requisite " third-step" analysis established in State v. Gilmore, 103 N.J. 508, 538, 511 A.2d 1150 (1986). We conclude the record of the remand hearing was too deficient to enable meaningful appellate review and a further remand would serve no useful purpose. Further, in light of this determination, we deem it unnecessary to consider defendant's challenge to the sentence imposed on remand and his PCR petition. Accordingly, we vacate the judgment of conviction and remand for a new trial.
[437 N.J.Super. 269] I.
The salient facts pertinent to this appeal are taken from our previously unpublished opinion in State v. Thompson,
No. A-5366-06, (App.Div. March 25, 2010) ( Thompson I ):
Defendant's convictions arose out of events unfolding during the late evening of July 8, 2005. The evidence before the jury disclosed that Andrews was on the porch of 265 21st Street in Irvington at 10:30 p.m. when two African-American males arrived. One of the males was tall with a " big automatic gun, and the other was short with a " small revolver." Andrews heard four or five shots and then realized that he had been shot. The shorter man approached him and attempted to shoot him in the face, but shot the cap on his head instead. After his assailants left, Andrews heard more shooting further down the street.
Officers LaCosta and Love were dispatched to a shots-fired call at Andrews' location just after 10:30 p.m. They found Andrews lying down in the hallway, bleeding from the right shoulder. Once an ambulance transported Andrews away from the scene, Officer LaCosta secured the crime scene and found four forty-caliber shell casings.
Not far from the scene of Andrews' shooting that evening, in the 300 block of 21st Street, Zhou and a female employee were working at the Lily Chinese Restaurant located at 353 21st Street. Green, who was a regular customer, entered the restaurant around 10:30 p.m. and ordered food. Zhou testified that he was not that busy and recalls observing two men arrive shortly after Green, with one of the men entering the restaurant briefly to purchase cigarettes while the other waited outside the front door.
As the customer who purchased cigarettes was leaving the restaurant, Zhou noticed him drawing his gun. Once outside, this customer began firing his gun. The male who had accompanied him to the restaurant but remained outside also started to fire shots from a gun. Zhou heard four gunshots and realized that he had been shot in the leg. He also saw bloodstains on the floor of the restaurant. Green had hurriedly left the restaurant. Later, police recovered blood evidence and bullets, as well as spent shell casings outside of the restaurant. They also photographed the wall damaged from bullet strikes inside of the restaurant.
After Zhou was treated for his leg injury, he was eventually taken to the police station, where police showed him a twelve-person photo array. Zhou identified defendant as one of the shooters. Zhou testified that he was ninety-percent certain that he had correctly identified the person in the photograph as the shooter who had remained outside, although he acknowledged that in his grand jury testimony, he had testified that he was unable to see the male who had remained outside " very good."
Defendant was apprehended later that evening following a car pursuit and foot pursuit. As defendant was fleeing from police, one officer observed defendant throw a gun that he had been carrying during the flight. Police recovered the weapon, and at trial a ballistics expert testified that all the bullets and casings the officers retrieved from the scenes of both shootings had been fired from the [437 N.J.Super. 270] weapon police recovered from underneath the dumpster. Green died from his bullet wounds four days after the shootings.
[ Id. at slip op. 2-5.]
The jury convicted defendant of first-degree conspiracy to murder, N.J.S.A. 2C:5-2 and 2C:11-3(a); first-degree attempted
murder, N.J.S.A. 2C:5-1 and 2C:11-3(a); first-degree conspiracy to murder, N.J.S.A. 2C:5-2 and 2C:11-3; first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); simple assault, N.J.S.A. 2C:12-1(a)(1); and fourth-degree resisting arrest, N.J.S.A. 2C:29-(a)(2). At sentencing, the court imposed an aggregate sixty-seven-year custodial sentence.
Defendant appealed his conviction, raising the following issues for our consideration: the court failed to engage in the three-step analysis mandated in Gilmore, 103 N.J. at 535-38, notwithstanding that the prosecution exercised seven of its nine peremptory challenges to exclude African-American jurors (Point I); the court erred in its jury instruction on identification (Point II); and the court subjected him to disparate treatment when it imposed a custodial sentence greater than the sentences received by his co-defendant (Point III). Thompson I, supra, slip op. at 5-6.
In that prior decision, we found no merit to defendant's Point II. As to Point I, we agreed that defendant had established that a cognizable class of prospective jurors had been excused and remanded the matter
to afford the prosecution the opportunity to articulate its reasons for excusing the seven African-American prospective jurors and for the court to then weigh those reasons against defendant's prima facie case in order to determine whether defendant has met his ultimate burden of proving by the preponderance of the evidence that the ...