STATE OF NEW JERSEY v. RAHEEM ALLEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5315-03T45315-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHEEM ALLEN,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 3, 2005 - Decided

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of

New Jersey, Law Division, Monmouth

County, Indictment No. 03-01-0044.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Mark S. Carter,

Designated Counsel, of counsel and on

the brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Adrienne B.

Reim, Deputy Attorney General, of

counsel and on the brief).

PER CURIAM

After being charged with attempted murder and two weapons offenses, defendant Raheem Allen came to trial before Judge Mellaci and a Monmouth County jury. The jury convicted defendant of lesser included second-degree aggravated assault, N.J.S.A. 2C:12-1(b); third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4, 2C:9-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4b. Judge Mellaci sentenced defendant to eight years imprisonment for the second-degree assault conviction; five years imprisonment, concurrent, for the third-degree unlawful possession conviction; and merged the unlawful purpose conviction into the assault conviction. Defendant's eight year sentence was subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appeals, advancing the following three arguments for our consideration: (1) the trial court erroneously admitted "the statements of Curtis Collins and Deyonna Hare pursuant to N.J.R.E. 803 (a)(1)"; (2) the trial court erroneously charged "the lesser included offense of aggravated assault"; and (3) "the defendant's sentence must be modified as the court violated the tenets of Blakely v. Washington."

Here are the pertinent facts. Curtis Collins fought with defendant at Jenny's Restaurant in Asbury Park. Collins threw the first punch because, just one week prior, defendant had beaten Collins with a baseball bat and knocked out his dentures. During the fight, Collins was getting the better of defendant, when defendant shot Collins in the chest. At the hospital, three days after the shooting, Collins identified defendant as the shooter from a photo array, and subsequently provided a written statement explaining why defendant had shot him.

Deyonna Hare, Collins's niece, had been in front of Jenny's when she saw a burgundy car arrive with four or five occupants, one of whom was later identified as defendant. Hare heard a shot, and went to Collins's assistance. While he was bleeding copiously, Hare heard him say that defendant had shot him, a charge that Collins repeated as Hare drove him to the hospital. When approached by the police, Hare identified defendant as the shooter, but expressed a fear of retaliation. She nevertheless provided a written statement recounting defendant's complicity.

At defendant's trial, however, both Collins and Hare refused to identify defendant as the shooter. Both testified that they could not recall who the shooter was. Collins testified that he could not identify defendant because Jenny's was dark and he was intoxicated by alcohol and narcotics. Hare claimed that she was too intoxicated to remember what she had told the police.

The State provided evidence to prove that Collins was alert and awake in the hospital when he identified defendant from the photo array and when he gave his written statement. The State also presented a witness to establish that Hare was coherent, lucid, and not under the influence when she provided her written statement. Both Hare and Collins had initialed each of the pages of their statements and signed and dated the last page beneath a certification professing the truth of the statements.

Defendant did not testify at trial, but presented the mother of his four-year-old son, who testified that on the day of, and just before the time of the shooting, she had dropped defendant off down the street from Jenny's and he was not in the car described by Hare. Defendant also presented a board certified oral surgeon and anesthesiologist who testified that because of the medications Collins had been given, nothing he said or wrote on the date of his statement would have been reliable.

On these facts, defendant argues the judge erred by admitting the written statements of Collins and Hare and by charging aggravated assault as a lesser included offense for attempted murder, when the defense was alibi and general denial. We reject both of these arguments as meritless, R. 2:11-3(e)(2), and add only the following brief comments.

It is clear to us that the statements in question were admissible pursuant to N.J.R.E. 803(a)(1), prior statements of witnesses, and N.J.R.E. 803(c)(2), excited utterances. We cannot fault the judge's exercise of discretion in admitting the evidence, see State v. Brown, 170 N.J. 138, 147 (1991), especially because he had sufficient indications of reliability. See State v. Goss, 121 N.J. 1, 15 (1990). In addition, that portion of Hare's statement that included Collins's identification of defendant as the shooter met the indicia for excited utterances. See State v. Long, 173 N.J. 138, 159-60 (2002).

With respect to defendant's argument regarding the court's jury instruction of aggravated assault, the "trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). In this case, the jury could have found that because defendant was being beaten by Collins just before the shooting, defendant did not intend to kill Collins but only intended to seriously injure him to stop the battering. Accordingly, there was a basis for the jury to acquit defendant of attempted murder and find him guilty of aggravated assault. Therefore, the lesser-included charge was required, despite defendant's intention to present an all-or-nothing defense. See State v. Garron, 177 N.J. 147, 180-81 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004).

Finally, defendant claims that his sentence exceeded the presumptive term for second and third-degree convictions and therefore violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In light of our Supreme Court's recent ruling in State v. Natale, 184 N.J. 458, 487 (2005), presumptive terms no longer apply and it is within the judge's discretion "to balance aggravating and mitigating factors" to impose a sentence within the range allowed by the jury verdict." Moreover, the court may consider prior criminal convictions as an aggravating factor without running afoul of the Sixth Amendment. Id. at 481-82.

In this case, the sentencing court appears to have gone beyond defendant's record to impose its sentence. Here, the judge noted that defendant was influenced by his environment and "the people you were hanging around with. Being . . . outside of Jennie's after midnight, after a night of carousing or drinking or smoking or whatever was going on." The judge also found "one mitigating factor, your willingness to cooperate with law enforcement in turning yourself in and coming back." But the court found only that mitigating factor "because of the fact that we're dealing with this gun."

Accordingly, to fully protect defendant's constitutional rights, we remand for re-sentencing, without consideration of any presumptive term, pursuant to Natale. Id. at 487.

 
Defendant's conviction is affirmed, but the matter is remanded for resentencing.

(continued)

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A-5315-03T4

October 18, 2005