STATE OF NEW JERSEY v. ANDRE WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2331-03T42331-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

ANDRE WILLIAMS,

Defendant-Appellant.

__________________________________

 

Submitted: January 30, 2006 - Decided February 21, 2006

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-09-3524.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

Nancy Kaplen, Acting Attorney General, attorney for respondent (H. John Witman, III, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of second degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count One); second degree robbery, contrary to N.J.S.A. 2C:15-1 (Count Three); first degree felony murder, contrary to N.J.S.A. 2C:11-3a(3) (Count Four); second degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4 (Count five); and fourth degree unlawful possession of a weapon (automobile), contrary to N.J.S.A. 2C:39-5d (Count Six). Following merger of Counts One and Three with Count Four, defendant was sentenced to an extended term of life in prison with a thirty-five year period of parole ineligibility; a concurrent term of thirty years imprisonment with an 85% No Early Release Act (NERA) period of parole ineligibility on Count Five; and a concurrent term of eighteen months on Count Six. The appropriate assessments and penalties were also imposed.

On the evening of June 22, 2001, defendant and a friend, Richard Reynolds, stole a white Oldsmobile Cutlass in Irvington. The following morning, defendant and Reynolds drove the car around Newark, "talking about let's go get some money." At about 6:45 a.m., they robbed a woman in Maplewood, snatching her purse from her shoulder and throwing her to the ground. They continued to drive around and at around 8:00 a.m., they noticed an elderly woman, Catherine Mele, pushing a shopping cart along Kerrigan Boulevard in Newark. Mele's purse was in the cart. Defendant pulled up to the curb in front of her and got out of the car. He then walked toward Mele with his head down and snatched her purse from the cart. At that moment, Mele fell to the street. Carrying Mele's purse, defendant ran back to the car, got into the driver's seat and started driving away.

Moments before defendant snatched Mele's purse, Duane Santos left his house at 410 Kerrigan Boulevard. Santos, a security guard licensed to carry a handgun, was dressed in his uniform shirt and jeans and was wearing a badge and holstered gun. As Santos left his house, he noticed an elderly woman pushing a cart down Kerrigan Boulevard and observed a man, later identified as defendant, jump out of a car and snatch her purse. Santos then saw the woman fall to the ground and defendant climb into the driver's seat of the car. As Santos stepped out to the curb to get a better look, defendant started driving in his direction. When defendant saw Santos, he put the car in reverse and backed up, running over Mele in the process. Defendant kept driving for about another forty yards with Mele under the car. When defendant got to the intersection of Ivy and Kerrigan, he turned east on Ivy Street. As he turned, Mele's body became dislodged. Police arrived within minutes, but Mele died soon thereafter.

On July 16, 2001, the Newark Police Department, based on information received concerning the death of Catherine Mele, went to the home of defendant's cousin, Mark Williams. The police interviewed Mark Williams about the events surrounding the death of Mele at his home and accompanied him to police headquarters where he gave a signed sworn statement. After speaking with Mark Williams, the police discovered that defendant had several outstanding warrants for traffic violations.

Later that day, police found defendant at his sister's house. Police arrested defendant for the outstanding traffic warrants and took him to police headquarters. At headquarters, defendant waived his rights and gave a formal written statement in which he confessed to the theft of a white Oldsmobile, a robbery in Maplewood, and the robbery of Catherine Mele, but claimed he did not know he had struck Mele with the car.

At trial, defendant's confession was admitted. In addition, defendant's cousin, Mark Williams, testified that when defendant and Reynolds returned home on June 23, 2001, they admitted robbing Mele.

Santos testified at trial to the events he witnessed on June 23, 2001, and also testified that the police showed him an array of photographs several times after the incident in an attempt to identify the person responsible for Mele's death. Although Santos testified that he had never made a photo identification, he then testified that he "believed there was one time" about a year before trial when he was shown three or four photographs by Detective Harris and made an identification of the defendant. Harris testified that Santos never made such an identification and that, if he had, the book containing the photograph would have been confiscated and placed into evidence.

On appeal, defendant raises the following points:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE SUPPRESSION OF EXCULPATORY EVIDENCE (Not Raised Below).

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON WHETHER THE USE OF UNLAWFUL AND EXCESSIVE DEADLY FORCE CONSTITUTED AN INTERVENING CAUSE OF DEATH (Not Raised Below).

POINT III

THE TRIAL COURT'S INSTRUCTION EXPRESSLY ALLOWED A VERDICT OF GUILTY ON THE CHARGE OF MURDER WITHOUT JURORS REACHING A UNANIMOUS VERDICT, IN VIOLATING OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 9 OF THE NEW JERSEY CONSTITUTION (Not Raised Below).

POINT IV

THE STATE'S RELIANCE ON ABSENTEE WITNESSES TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION (Not Raised Below).

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND EQUAL PROTECTION AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CROSS-RACIAL IDENTIFICATIONS EVEN THOUGH THERE WAS A CROSS-RACIAL IDENTIFICATION AND IDENTIFICATION WAS A FUNDAMENTAL CONTESTED ISSUE IN THE CASE (Not Raised Below).

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT THE DEFENDANT MUST KNOWINGLY USE FORCE (Not Raised Below).

POINT VII

TRIAL COUNSEL'S CONFLICT OF INTEREST DEPRIVED THE DEFENDANT OF THE UNDIVIDED LOYALTY OF COUNSEL AS REQUIRED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 10 OF THE NEW JERSEY CONSTITUTION.

POINT VIII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO MOLD THE MODEL JURY CHARGE TO THE FACTS OF THE CASE (Not Raised Below).

POINT IX

THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.

POINT X

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO HOLD A WADE HEARING (Not Raised Below).

POINT XI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO SEVER OFFENSES AND ALTERNATIVELY TO GIVE THE JURORS A CAUTIONARY INSTRUCTION ON THE JOINED OFFENSES.

A. THE TRIAL COURT ERRED BY FAILING TO SEVER OFFENSES.

B. THE TRIAL COURT ERRED BY FAILING TO GIVE THE JURORS A PROPER CAUTIONARY INSTRUCTION ON JOINED OFFENSES ARISING FROM DIFFERENT CRIMINAL EPISODES. (Not Raised Below).

POINT XII

THE DEFENDANT'S CONFESSION SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS COME AT BY THE EXPLOITATION OF VIOLATIONS OF CONSTITUTIONAL AND COMMON LAW RIGHTS.

POINT XIII

THE DEFENDANT WAS UNFAIRLY PREJUDICED BY THE IMPROPER ADMISSION OF AUTOPSY PHOTOGRAPHS.

POINT XIV

THE CONVICTION FOR AGGRAVATED MANSLAUGHTER MUST MERGE WITH THE CONVICTION FOR FELONY MURDER.

POINT XV

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

A. THE TRIAL COURT ERRED BY IMPOSING AN EXTENDED TERM.

B. THE TRIAL COURT ERRONEOUSLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

Defendant argues that the State withheld exculpatory evidence by "destroying the out-of-court photographic identification record" of Duane Santos' out-of-court identification of defendant. Defendant contends that the failure by the State to inform him of the out-of-court identification procedure and the failure to preserve the record of that procedure is contrary to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). This claim was not raised at trial; therefore, we review the alleged error in accordance with the plain error standard. R. 2:10-2.

Santos saw the robbery. He witnessed defendant commence to drive his car away from the scene towards Santos as the victim lay on the ground. He also observed defendant drive backwards, drive over Mele and drag her down the street. At trial he testified that he looked through a number of books containing "a lot" of photographs soon after the incident. He did not make an identification of the driver who robbed and struck Mele. Santos looked through photographs on several other occasions, but did not make an identification.

Immediately after testifying that he had never made a photo identification, defendant's counsel asked Santos, in an obvious attempt to emphasize that Santos had never made an identification, "[y]ou have never made an identification?" Santos replied, "[w]ell, I gave a description." Defense counsel then asked, "[y]ou gave a description but you never looked at a photograph of a person and said 'that's the guy?'" Santos responded, "I believe there was one time when I came here downstairs and that was that. They showed me a photograph, I identified the guy." Santos further testified that he made the identification, "last year sometime," and that he was possibly shown "three or four photographs" and chose defendant's photograph from the array.

Neither the State nor defense counsel had anticipated Santos' testimony about the photo identification. As the prosecutor explained at a sidebar conference:

I am not aware of any photograph. I want to find out if there was a photograph shown to this man. I am going to call witnesses to say that he never identified anybody. I don't know about him being shown a photograph. I am going to call Investigator Harris and Dt. Vitello who will say he never picked out a photograph. I don't know if he is misunderstanding the question, but I am not aware of that.

Defendant argues that the State suppressed vital exculpatory evidence by not informing him of the out-of-court identification and failing to maintain a copy of the array. Defendant suggests that the reason the array was not preserved was because Santos identified someone other than defendant or that he failed to make any identification.

In Brady v. Maryland, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218, the United States Supreme Court held "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." To establish a Brady violation, the defendant must show: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defense; and (3) the evidence was material. State v. Martini, 160 N.J. 248, 268-69 (1999) (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972).

Evidence is "material" if there was a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 269 (citing United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1995). A "reasonable probability" is one that is "sufficient to undermine confidence in the outcome." Ibid. (citing Bagley, supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494.

If an out-of-court identification had occurred through a presentation of photographs, the array should have been preserved, State v. Earle, 60 N.J. 550, 582 (1972), and defendant should have been informed. Defendant then could have examined the array to determine if the eyewitness identified someone other than defendant or if the array was unduly suggestive. Here, however, the State was unaware that the eyewitness had made an out-of-court identification and the testimony by Santos was equivocal. He never stated definitively that he had made an identification through a photograph. Moreover, the detective who was present when Santos viewed photographs testified Santos viewed hundreds of photographs and never identified defendant.

Based on this record, there is an insufficient basis to determine whether there was an unreported and unpreserved out-of-court identification. There certainly is no evidence that any unreported and unpreserved out-of-court identification produced exculpatory evidence. Therefore, we discern no Brady violation.

Defendant also contends that the instructions to the jury contained many flaws. He argues that the trial judge did not inform the jury that the use of unlawful and excessive deadly force constituted an intervening cause of death. This argument is predicated on defendant's contention that Santos drew his gun and pointed it at defendant. Defendant did not request this charge at trial; therefore, we review this contention in accordance with the plain error standard. R. 2:10-2.

Defendant contends that he "threw the car into reverse" because Santos had approached his car and stood in front of his car, his gun drawn and pointing directly at him. This version of events is derived from defendant's statement to police in which he said:

Then I ran and jumped back into the car. I looked and there was a c[o]p right there in front of me. He was right in front of the car. He was pointing his gun at me like he was going to shoot me, so I was all paranoid. He looked like he was about to shot me, then I started ducking down. I threw the car in reverse.

Santos denied that he ever drew his gun. Defendant contends that Santos' actions were unlawful and that he was reacting to the unlawful use of force. Therefore, Santos' action was an intervening cause of Mele's death that required the trial judge to instruct the jury on the concept of an independent intervening cause.

Defendant was charged with felony murder, which is a strict liability offense under N.J.S.A. 2C:11-3(a), and aggravated manslaughter, which occurs when one "recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4a. Causation is an essential element of those homicide charges and the trial court charged the jury accordingly.

Under N.J.S.A. 2C:2-3, conduct is the cause of a result when:

(1) It is an antecedent but for which the result in question would not have occurred; and

(2) The relationship between the conduct and result satisfies any additional causal requirements imposed by the code or by the law defining the offense.

. . . .

c. When the offense requires that the defendant recklessly or criminally negligently cause a particular result, the actual result must be within the risk of which the actor is aware or, in the case of criminal negligence, of which he should be aware, or, if not, the actual result must involve the same kind of injury or harm as the probable result and must not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense.

. . . .

e. When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor's conduct.

[N.J.S.A. 2C:2-3.]

The causation requirement of N.J.S.A. 2C:2-3 contains two components: (1) a "but-for" test under which defendant's conduct is considered a cause of the event if the event would not have occurred without that conduct and, (2) a culpability assessment. State v. Pelham, 176 N.J. 448, 460 (2003). When assessing culpability,

it is for the jury to determine whether intervening causes or unforeseen conditions lead to the conclusion that it is unjust to find that the defendant's conduct is the cause of the actual result. Although the jury may find that the defendant's conduct was a "but-for" cause of the victim's death . . . it may nevertheless conclude . . . that the death differed in kind from that designed or contemplated [or risked] or that the death was too remote, accidental in its occurrence, or dependent on another's volitional act to justify a murder conviction.

[Id. at 461 (quoting State v. Martin, 119 N.J. 2, 13 (1990)).]

In instructing the jury on causation, the trial court explained that the State must prove, beyond a reasonable doubt, that:

but for the defendant's conduct in the commission of or attempt to commit or flight after committing or attempting to commit robbery, the victim would not have died.

In other words, that the victim's death would not have occurred without the commission of the robbery; Number two, that the victim's death was a probable consequence of the commission of or attempt to commit or flight after committing or attempting to commit robbery.

In order for the death to be a probable consequence of the robbery, the death must not have been too remote or too accidental in its occurrence or too dependent another another's volitional act to have a just bearing on the defendant's liability or the gravity of the offense . . . you must decide if the State has proven beyond a reasonable doubt under all the circumstances the death did not occur in such an unexpected or unusual manner that it would be unjust to find the defendant responsible for the death. (emphasis added).

Viewed in its entirety, the trial court's instructions adequately addressed any role that the conduct of Santos may have played in mitigating defendant's responsibility for Mele's death. The instruction clearly informed the jury that the death must not have been "too dependent" on "another's volitional act."

The jury was aware that it was required to assess defendant's conduct and that of others in light not only of his statement but also in accordance with the testimony of others. Santos denied that he ever drew his gun. Defendant's cousin, Mark Williams, testified that defendant told him that an off-duty police officer drew his gun. The instruction as delivered provided sufficient guidance for the jury to evaluate the causation issue.

Defendant also contends that the jury was not told that its verdict must be unanimous. Defendant did not object to this alleged error at trial. We determine that there was no error, must less plain error, because this argument is founded wholly on a single out-of-context phrase. The charge on the need for unanimity was in strict conformance with the Model Jury Charge.

Defendant's two allegations of error in the jury charge regarding the issue of identification are similarly without merit. He contends that the trial judge erred by omitting a cross-racial identification charge as required by State v. Cromedy, 158 N.J. 112 (1999), and that the trial judge failed to instruct the jury that defendant must knowingly use force. A cross-racial identification charge was not required because identification was not an issue. The eyewitness, Santos, did not identify defendant and defendant provided an inculpatory statement to the police and to his cousin Mark. The issue in the case was whether his conduct rose to the level of felony murder and aggravated manslaughter. For the same reasons, there was no need for a Wade hearing.

Finally, as to the charge, defendant contends the trial judge did not correctly instruct the jury on the mental state required for robbery or mold the charge to the facts of the case. We disagree. The charge provided by the trial judge on the mental state required to convict defendant of robbery was entirely consistent with State v. Sewell, 127 N.J. 133 (1992).

The charge faithfully followed the Model Jury Charge. There are times when a trial judge must go beyond the Model Jury Charges to properly guide the jury. State v. Concepcion, 111 N.J. 373, 379 (1988). Generally, jury instructions are molded or tailored when a bare statement of the law divorced from the facts may confuse or mislead the jury. See, e.g., State v. Sexton, 160 N.J. 93, 106 (1999) (requiring tailored instruction on recklessness); State v. Gartland, 149 N.J. 456, 475 (1997) (requiring tailored instruction on self-defense and duty of retreat); State v. Olivio, 123 N.J. 550, 567 (1991) (requiring tailored instruction on mental states). Here, however, the facts were not complex and the jury was readily able to apply the facts as developed at the trial to the law without any potential for confusion.

Defendant's contention that the admission of autopsy photographs caused undue prejudice is also without merit. Actually, the photos admitted in evidence were crime scene photos not autopsy photos. The trial judge reviewed the photos and determined that they were relevant to the issues before the jury and not unduly prejudicial.

The admission of photographs is vested in the discretion of the trial judge, who must determine whether the admission of demonstrative evidence, such as photographs, would cause undue prejudice. N.J.R.E. 403; State v. Feaster, 156 N.J. 1, 82-84 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). This court will defer to the decision of the trial judge unless it represents a "manifest error or injustice." State v. Moore, 122 N.J. 420, 459 (1991).

Here, we have not been provided with the photographs admitted at trial. In the absence of the photographs, this court will defer to the trial judge's assessment of the impact of the photos. Cf. State v. Mancine, 241 N.J. Super. 166, 191 (App. Div. 1990) (when allegedly gruesome photos were not provided, Appellate Division deferred to trial judge's reaction to their impact), modified on other grounds, 124 N.J. 232 (1991).

We also reject defendant's contention that the State relied on absentee witnesses to implicate defendant in the robbery and death of Catherine Mele. This error concerns a statement made by the prosecutor in his opening statement. The prosecutor stated that police went to defendant's uncle's home "based upon information they received." This statement was in strict compliance with the rule announced in State v. Bankston, 63 N.J. 263 (1973).

We also perceive no mistaken exercise of discretion in the denial of defendant's motion to sever the robbery charges. Defendant was charged with two counts of robbery. Count Two of the indictment charged defendant with the robbery of Eloise Gruber on June 23, 2001, in Maplewood. Count Three charged defendant with the robbery of Catherine Mele on the same date in Newark. The robberies occurred no more than two hours apart in neighboring towns. Prior to trial, defendant moved to sever the Maplewood robbery. The trial judge denied the motion. On appeal, defendant contends that he was unduly prejudiced by the joinder of the two offenses. We disagree.

Two or more indictments or accusations may be tried together if, among other things, the offenses charged "are of the same or similar character . . . ." R. 3:7-6; R. 3:15-1(a). A judge may sever joined charges "if for any reason it appears that a defendant or the State [may otherwise be] prejudiced . . . ." R. 3:15-2. Here, the offenses charged in the indictment were of a "similar character" - they occurred two hours apart, less than two miles away from one another and were part of a common scheme or plan to "get some money." Thus, the joinder satisfied the requisites of Rule 3:7-6 and the charges were properly joined.

Nevertheless, although separate and distinctive crimes of the same or similar character may be joined for trial in the interests of judicial economy, where there exists a real "possibility of prejudice to [a] defendant, a trial severance of the offenses should be granted." State v. Reldan, 167 N.J. Super. 595, 597 (Law Div. 1979), rev'd on other grounds, 185 N.J. Super. 494 (App. Div. 1982). A key factor in determining whether prejudice exists from joinder of multiple offenses "is whether the evidence of [those] other acts would be admissible in separate trials under [N.J.R.E. 404(b)]." State v. Moore, 113 N.J. 239, 274 (1988) (citing State v. Kent, 173 N.J. Super. 215, 220 (App. Div. 1980)).

Here, there is no support for defendant's contention that he was prejudiced by the joiner of the two robbery offenses. In fact, he was acquitted of the first robbery. Furthermore, defendant was not entitled to a limiting instruction on the joined offenses. We observed in State v. Cherry, 289 N.J. Super. 503 (App. Div. 1995), that N.J.R.E. 404(b) "does not apply when the 'other crimes' evidence is part of the total criminal conduct that occurred during the incident in question and may be considered within the res gestae of the charged crime." Id. at 522. Here, there was evidence that defendant and his companion had decided to obtain money from vulnerable persons. The charges were properly joined.

We consider the remainder of defendant's arguments, including his contentions that there was an impermissible conflict of interest between defendant and defense counsel due to a disagreement about the course of the trial (Point VII), that his motion for a judgment of acquittal should have been granted (Point IX), and that his motion to suppress his confession should have been granted (Point XII), are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We now address the sentence.

Defendant is serving a life term of imprisonment with thirty-five years of parole ineligibility for felony murder, a concurrent thirty-year term with 85% parole ineligibility term for aggravated manslaughter, and a concurrent eighteen-month term for fourth degree unlawful possession of a weapon. He asserts that the aggravated manslaughter charge should have merged with the felony murder conviction and that the sentence is manifestly excessive.

Defendant contends that his convictions for aggravated manslaughter and felony murder should have merged because "there was only one homicide with two theories of liability." The State responds that merger is not required because the facts necessary to establish the element of felony murder differ from the facts required to establish aggravated manslaughter. This reasoning is supported by N.J.S.A. 2C:1-87; however, it does not account for the fact that the same conduct produced a single death. Indeed, in State v. Pantusco, 330 N.J. Super. 424, 444-45 (App. Div.), certif. denied, 165 N.J. 527 (2000), this court acknowledged that an aggravated manslaughter conviction should merge with a felony murder conviction "as there cannot be two homicide convictions for the death of the victim." The aggravated manslaughter conviction should have merged with the felony murder conviction; therefore, we vacate the sentence imposed on the aggravated manslaughter conviction and remand for entry of an amended Judgment of Conviction.

The life term of imprisonment is the product of an extended term pursuant to the "Three Strikes Law," N.J.S.A. 2C:43-7.1. It is undisputed that defendant has the requisite prior convictions and that the imposition of an extended term is mandatory rather than discretionary. The life term with a thirty-five year term of parole ineligibility is consistent with N.J.S.A. 2C:43-7.1b(1) and N.J.S.A. 2C:43-7(a)(6).

 
The convictions are affirmed; the aggravated manslaughter conviction merges with the felony murder conviction. The matter is remanded for entry of an amended judgment of conviction. In all other respects the sentence is affirmed.

Defendant was acquitted of Count Two, the robbery of Eloise Gruber in Maplewood on June 23, 2001.

N.J.S.A. 2C:43-7.2.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

In State v. Hill, 182 N.J. 532 (2005), the Court criticized Pantusco. The Court's criticism, however, was limited to the treatment of merger in the context of multiple felonies that could serve as the predicate for a felony murder conviction, id. at 299-300, and does not address the issue raised in this appeal.

(continued)

(continued)

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A-2331-03T4

February 21, 2006