STATE OF NEW JERSEY v. AL QUAADIR GREEN

This case can also be found at 196 N.J. 601, 960 A.2d 396.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4154-05T44154-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AL QUAADIR GREEN,

Defendant-Appellant.

_________________________________

 

Submitted April 2, 2008 - Decided

Before Judges Wefing, R. B. Coleman, and Lyons.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, No. 01-10-4345.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Steven M. Gilson, Designated

Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Sara A. Friedman, Assistant

Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Tried to a jury, defendant was convicted of two counts of murder, N.J.S.A. 2C:11-3(a)(1) or (2); two counts of felony murder, N.J.S.A. 2C:11-3(a)(3); one count of attempted murder, N.J.S.A. 2C:5-1, 11-3; four counts of robbery while armed, N.J.S.A. 2C:15-1; one count of conspiracy to commit robbery, N.J.S.A. 2C:5-2, 15-1; one count of aggravated assault, N.J.S.A. 2C:12-1(b)(2); one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and one count of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant's aggregate sentence was two consecutive life terms, each with a thirty-year period of parole ineligibility. Defendant has appealed his convictions and his sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On the evening of May 18, 2001, Christian Made, Juana Ozuna, Sofia Rodriguez, Sofia's sister Roseanna Rodriguez and Marisol Rosario went to a club in Jersey City. They stayed until closing time and Made drove the group home, as he had driven them to the club. He took the exit from Route 280 and at the bottom of the ramp, pulled his car over. Several witnesses said he did so because Ozuna was ill from drinking too much. They all got out of the car. Roseanna Rodriguez lived approximately two blocks away, and she decided to walk home. Another car pulled up, with three occupants. The driver and rear-seat passenger were male, the front-seat passenger was female; all were African-American. The driver asked if everything was all right, and the group said yes. Marisol Rosario noticed the rear-seat passenger lean forward and whisper something to the driver, and she immediately sensed trouble and told Sofia Rodriguez they should leave. As she said this, she saw the man sitting in the rear passenger seat get out of the car, holding a small black gun. She walked quickly across the street and hid in a stairwell.

Sofia Rodriguez got into the driver's seat of their car and told Ozuna and Made they had to leave. She saw one of the two males from the other car strike Made, who got into the passenger seat next to Rodriguez and said they were being robbed.

One of the robbers was standing next to Sofia Rodriguez, who was in the driver's seat. Rodriguez gave her pocketbook to the assailant and realized he had a gun. He then reached across her into the car and took the keys from the ignition. He then shot her in the head and she passed out.

Marisol Rosario, who was hiding across the street, heard several shots. When she heard the other car drive away, she ran to a cousin's house, which was nearby. When Sofia Rodriguez regained consciousness, Made was leaning on her; he had been shot in the right temple. Ozuna was lying on the street, in a pool of blood. Sofia Rodriguez ran to the same house as had Marisol Rosario, saying she had been shot.

Later that morning, Newark police gave Marisol Rodriguez a series of books containing mug shots of African-American males and African-American females. After looking through them, she did not see anyone she could identify.

Police and emergency personnel responded to the scene. Four .380 caliber shell casings and a projectile fragment were recovered from the front passenger seat of the victims' car.

These shell casings matched casings and a bullet fragment recovered approximately two weeks earlier from the scene of a May 6 shooting at 611 Martin Luther King Boulevard. Testing revealed that the bullets recovered at the autopsies of Ozuna and Made were fired from the same gun that had been used in the earlier shooting.

Latique Mayse was the victim of the May 6 shooting, and he was interviewed by Detective Vincent Vitiello of the Newark Police Department. Detective Vitiello testified that Mayse gave a statement in which he said he was "absolutely certain" that defendant was the person who had shot him. Mayse identified defendant as the shooter in a photo array and also identified Omar Auston as a person who was with defendant at the time of the shooting.

At defendant's trial, Mayse denied that defendant shot him on May 6, and said that he could not remember giving a statement to that effect and could not remember selecting defendant's picture. Mayse was then confronted with testimony he had given to a grand jury, in which he had said he met defendant on the street on May 6 and that defendant had a silver and black .380 caliber gun. Mayse had also told the grand jury that the earlier statement he had given to Detective Vitiello was accurate. In response, Mayse said he did not recall that testimony and that the grand jury transcript was inaccurate.

Investigator Robert Harris of the Essex County Prosecutor's Office learned of the ballistics match between the May 6 shooting and the killings of Made and Ozuna and that Mayse had identified defendant as the May 6 shooter. Based upon that, he prepared separate photo arrays including defendant's picture and Auston's picture and showed them to Sofia Rodriguez and Marisol Rosario. Neither could make any identification although Rosario indicated one picture might be that of the driver of the car.

Several weeks later, defendant and Omar Auston were arrested in New York City. Defendant had a .380 caliber gun and Auston a 9 millimeter at the time of their arrests. Ballistics tests linked that .380 caliber gun to the May 6 and May 19 shootings. Harris learned of these arrests and presented to Sofia Rodriguez and Marisol Rosario photo arrays that had been compiled by New York police. Rodriguez selected defendant's picture as the man who had shot her, and Rosario selected Auston's picture as the driver of the car. Defendant and Auston were arrested and charged with the May 19 shootings.

In October 2002, while defendant remained in jail awaiting trial, the prosecutor's office, in connection with an entirely unrelated matter, conducted a search of an apartment at 717 Martin Luther King Boulevard occupied by Narique Wilson. The search uncovered a letter addressed to Wilson. The envelope bore defendant's name, inmate number and cell number and the address of the Essex County Jail. The jury heard the following redacted version of the letter:

Little Bro, when me and O. was home we made some bad moves. This is where I need your help. That little bitch Ky is telling on me. If you got love for me, push her. That's the only person that's stopped me from coming home. Do that, Dog, I want to come home. Al.

According to the record, the word "push" means "kill" in street vernacular.

Omar Auston was tried before defendant and was convicted as an accomplice. Kysheal Ivery testified at Auston's trial that she had been in the front seat of the car on May 19, 2001, and that Auston had a 9 millimeter gun and defendant a .380 caliber gun. She said at Auston's trial that she had seen defendant shoot one of the victims and take some cell phones which he later discarded behind the Seth Boyden homes in Newark. She also said she had identified a photograph of defendant.

At defendant's trial, Ivery said she could not recall who she was with on May 19. Based upon that, she was confronted with her earlier testimony. At defendant's trial, she said she could not recall that testimony because she had been high on drugs when she testified at Auston's trial and that she was, while on the stand at this trial, also high on drugs. On cross-examination, she denied being at the scene of the shootings or acting as a lookout.

Defendant presented only one witness, Police Officer Darlene Young, who was the first to respond to the scene of the shooting. She interviewed Sofia Rodriguez and put in her report that Sofia Rodriguez said she had been shot by a "black Hispanic male." The defense argued from that statement that defendant had been misidentified. This was the first homicide in which Officer Young had been involved, and the State asserted that Officer Young had made a mistake in preparing her report.

On appeal, defendant raises the following arguments.

POINT I THE ADMISSION OF OTHER-CRIMES OR "WRONGS" EVIDENCE, THAT DEFENDANT WAS INVOLVED IN A PRIOR SHOOTING, CONSTITUTES REVERSIBLE ERROR

POINT II THE ADMISSION OF TESTIMONY REGARDING A LETTER PURPORTEDLY WRITTEN BY DEFENDANT, WHEREIN THE WRITER REQUESTED THAT A WITNESS TO THE INCIDENT BE KILLED, CONSTITUTES REVERSIBLE ERROR

POINT III THE TRIAL COURT'S FAILURE TO PROVIDE AN ADEQUATE JURY INSTRUCTION REGARDING A WITNESS'S PRIOR INCONSISTENT STATEMENT CONSTITUTES PLAIN ERROR; IN THE ALTERNATE, THIS MATTER MUST BE REMANDED FOR A GROSS HEARING REGARDING THE WITNESS'S PRIOR INCONSISTENT STATEMENTS (Not Raised Below)

POINT IV THE TRIAL COURT'S FAILURE TO PROVIDE A "FALSE IN ONE, FALSE IN ALL" CHARGE CONSTITUTES REVERSIBLE ERROR (Partially Raised Below)

POINT V THE CUMULATIVE ERRORS MANDATE THAT DEFENDANT'S CONVICTIONS BE REVERSED (Not Raised Below)

POINT VI THIS MATTER MUST BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCING COURT FAILED TO GIVE REASONS FOR IMPOSING CONSECUTIVE TERMS (Not Raised Below)

I

In defendant's first point, he contends the trial court erred in its admission of testimony with respect to the May 6 shooting. This testimony, he asserts, was evidence of other wrongs within the meaning of N.J.R.E. 404(b) and should not have been admitted against him.

At the time of defendant's trial, N.J.R.E. 404(b) provided:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

The rule is intended to protect a defendant against the possibility that a jury might convict him merely because it considered him to be a "bad person." State v. Ramseur, 106 N.J. 123, 265 (1987). Evidence that a defendant has committed other crimes, wrongs or acts cannot be received to prove that a defendant has a propensity to commit crime and thus is more likely to be guilty of the offense charged. State v. Reddish, 181 N.J. 553, 608 (2004); State v. Stevens, 115 N.J. 289, 300 (1989).

Such evidence is not completely barred, however. It may be received to prove other facts in issue, provided it is necessary to prove an issue that is genuinely disputed, State v. Fortin, 162 N.J. 517, 529 (2000); Stevens, supra, 115 N.J. at 300-01, and provided that it meets the four-part test set down by the Supreme Court in State v. Cofield, 127 N.J. 328, 338 (1992). The evidence must (1) be relevant to a material issue; (2) be similar in kind and reasonably close in time to the offense charged; (3) be clear and convincing; and (4) have probative value that is not outweighed by its prejudicial effect.

Generally, the prosecution must establish these four factors in a hearing conducted under N.J.R.E. 104. Finally, if the trial court concludes after such a hearing that the evidence should be admitted, the trial court must explain to the jury the limited manner in which it may consider that evidence. This instruction "should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." Cofield, supra, 127 N.J. at 341 (quoting Stevens, supra, 115 N.J. at 304). An essential aspect of such an instruction is to tell the jury that it may not draw any inferences from that evidence that the defendant has a propensity to commit criminal acts. Reddish, supra, 181 N.J. at 611.

Here, the trial court fully complied with this procedure. It conducted a N.J.R.E. 104 hearing at which both Detective Vitiello and Mayse testified. It then proceeded to analyze the testimony presented at that hearing in terms of the four-prong Cofield test. It found the evidence relevant to a material question, the identity of the shooter on May 19. It also found that the evidence involved an incident reasonably close in time and of a similar nature. As to the requirement that proof of the prior bad act be clear and convincing, the trial court cited Mayse's testimony before the grand jury and his signed statement, in both of which he identified defendant as the man who shot him on May 6. Finally, recognizing the potential for prejudice, the trial court ruled that the evidence should be sanitized. Thus the trial court ruled that the State could only present evidence to the effect that Mayse had witnessed defendant fire the gun on May 6 and that Mayse had been shot on May 6. The State could not present evidence to the effect that defendant had shot Mayse.

Defendant's principal argument on appeal is that the trial court erred in the manner in which it ordered the testimony with respect to the May 6 shooting sanitized. Defendant contends that the trial court should have, sua sponte, limited the evidence to testimony that defendant had possession of the gun on May 6 but should have precluded evidence that defendant fired it on May 6.

We agree with the State that in the particular context of this matter, such a restriction would not have achieved any noticeable benefit for defendant. The State's evidence linking defendant with the May 6 incident and the May 19 incident was ballistics evidence, based upon an analysis of the empty shells recovered from the scene of each shooting. Such empty shells are left only if the weapon has been fired, discharging a bullet. It had to be inescapably clear to the jury that the May 6 incident involved a shooting; if it did not, there would have been no shells to recover and analyze.

Nothing within the Supreme Court's recent opinions in State v. Kemp, ___ N.J. ___ (2008), or State v. Barden, ___ N.J. ___ (2008), would lead us to a different conclusion. In Kemp, the Court reversed the defendant's conviction for felony murder and robbery based upon the erroneous admission of other crimes evidence. Manuel Santiago died from stab wounds he received during the course of a robbery. ___ N.J. at ___ (slip op. at 3). Investigation led the police to the defendant who gave a statement to the effect that he and another individual, "B," committed a series of robberies over a two-day period. In his statement, he said that "B" had stabbed Santiago. Id. at ___ (slip op. at 4). At trial, the defendant repudiated his statement, contending he had been tricked into signing it. At his trial, the State introduced, in addition to defendant's statement, evidence with respect to a robbery which had occurred the night before Santiago's stabbing. Id. at ___ (slip op. at 5). The victim testified as to the incident; she was unable to identify her assailant, but other witnesses testified that they saw the defendant in close proximity to the scene in possession of a knife immediately after it occurred. Id. at ___ (slip op. at 7). Defendant in his testimony denied stabbing Santiago and denied any involvement in the other robbery.

The Supreme Court agreed that evidence of this unrelated robbery was improperly admitted, and it reversed defendant's convictions and remanded for a new trial. It first noted that the decisions of the trial court with respect to the second, third and fourth prongs of the Cofield test were not an abuse of the trial court's discretion. Id. at ___ (slip op. at 15). It disagreed with the trial court's conclusion, however, that evidence of the unrelated robbery was relevant to the question of defendant's guilt with respect to Santiago. It noted the factual distinctions between the two events and that evidence of the first demonstrated only that defendant may have committed a robbery the night before Santiago was killed. According to the Court, "[t]he only nexus" between the incidents was their closeness in time and location. Id. at ___ (slip op. at 17).

Here, however, there is no such dissimilarity. Both incidents involved shootings on the streets of Newark in which the shooter left in a getaway car driven by another. Only a relatively short period of time separated the two incidents and the evidence was relevant to the crucial question of identification, the defense theory throughout being that defendant was the victim of an erroneous identification.

In Barden, a jury found defendant "guilty of first-degree robbery, second-degree attempted theft, fourth-degree aggravated assault, third-degree unlawful possession of a weapon, and second-degree possession of a weapon for an unlawful purpose." ___ N.J. ___ (slip op. at 7). The trial court permitted testimony that defendant had, over a six-month period, sold drugs approximately thirty times to a sixteen-year-old girl who participated in the criminal event. The Supreme Court reversed defendant's conviction and remanded for a new trial for two reasons: the prejudice to defendant outweighed the probative value of the evidence, Id. at ___ (slip op. at 17), and the court's limiting instruction was inadequate, Id. at (slip op. at 17).

Here, however, we agree with the trial court's conclusion that the probative value of the sanitized evidence presented to the jury about the May 6 incident outweighed the potential prejudice to defendant. In addition, the trial court gave a clear limiting instruction on how the jury could utilize this evidence in its deliberations.

II

The defendant's second argument revolves around the trial court receiving into evidence the letter recovered in October 2002 in the course of a search of the apartment of Narique Wilson. We see no error in the court's handling of the matter.

The trial court conducted a pre-trial hearing to determine whether the letter, either in whole or in part, would be admissible. Based upon the testimony presented at the hearing, the trial court noted the various items of circumstantial evidence linking defendant to the letter: the return address on the letter matched defendant's address in jail; Narique Wilson was an acquaintance of defendant's; there was nothing which would support an inference that the letter was an attempt to frame defendant and the letter itself contained textual links to defendant. These circumstantial pieces constituted sufficient authentication under N.J.R.E. 901.

At trial, the trial court carefully charged the jurors that it was up to them to determine whether defendant wrote the letter and whether the contents of the letter bore upon defendant's guilt in these shootings. "[E]vidence of . . . post-crime threats made against a witness . . . demonstrated a consciousness of guilt" and were thus properly admitted into evidence. State v. Williams, 190 N.J. 114, 125 (2007) (citing State v. Rechtschaffer, 70 N.J. 395, 413-15 (1976)).

III

Defendant's next argument revolves around the manner in which the trial court handled the testimony of Ms. Ivery, specifically its instruction on how to weigh a prior inconsistent statement.

We noted earlier that when the prosecution called Ms. Ivery as a witness, she said she could not recall any of the events of May 19, 2001. She had testified several months earlier at the trial of Omar Auston about the shootings; at defendant's trial, she maintained that she could not remember testifying at the Auston trial. Based upon that, the prosecution confronted her with her testimony at that earlier trial. The trial court did not conduct a Gross hearing, State v. Gross, 121 N.J. 1 (1990), but defendant recognizes that there was no need to do so with respect to her earlier trial testimony since it had been given under oath. N.J.R.E. 803(a)(1).

During the course of her testimony, she was also confronted with the statement she gave to the police on January 29, 2002, in which she detailed the events of May 19. Defendant complains on appeal that the trial court erred in permitting this to occur without having first conducted a Gross hearing specifically directed to this statement. This, defendant asserts, entitles him to a new trial.

We disagree. Defendant's argument overlooks the fact that it was defense counsel who confronted Ms. Ivery with this statement, not the prosecution.

Defendant also complains that the trial court in its charge did not outline to the jury the various Gross factors in explaining how to use this prior inconsistent statement. We have reviewed the trial court's charge and find its discussion of assessing the credibility of the various witnesses entirely adequate.

IV

During the charge conference, defense counsel requested that the trial court give to the jury a "false in one, false in all" charge with respect to the testimony of Mayse and Ivery. The trial court declined to give such a charge, noting, for example, that the jury could conclude that Mayse was untruthful in his testimony in this case but yet had been truthful in his testimony to the grand jury. Similarly, the jury could conclude that Ivery had been truthful in her testimony in the earlier trial but not truthful before this jury.

We have reviewed the trial court's charge in its entirety. The court carefully outlined for the jury at several junctures the appropriate factors to consider when weighing the credibility of the various witnesses it had heard. The court gave detailed instructions on the task of assessing the credibility of specific witnesses such as Ivery and Mayse. There was no error.

V

Defendant's final two arguments do not require extended discussion. He asserts cumulative error. State v. Koskovich, 168 N.J. 448, 540-41 (2001); State v. Orecchio, 16 N.J. 125, 129 (1954). Having found no error, the principle of cumulative error has no application.

He also complains that the trial court failed to give a statement of reasons in support of its decision to impose cumulative sentences. While it is true that the trial court did not explicitly address the question, we can perceive no justification to remand this matter. Two individuals lost their lives on May 19; a concurrent sentence would have denigrated that reality. State v. Molina, 168 N.J. 436 (2001).

Defendant has filed a pro se brief in which he raises the following additional arguments.

POINT I THE TRIAL JUDGE ABUSED HER DISCRETION IN ADMITTING TESTIMONY OF FIREARMS EXAMINER WHO NEVER TEST FIRED THE WEAPON AND WHOSE TESTING PROCEDURES DID NOT COMPORT WITH STANDARDS IN THE FIELD OF BALLISTICS REGARDING DOCUMENTATION AND PEER REVIEW, PURSUANT TO N.J.R.E. 702, AND AS A RESULT DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL THEREFORE THE CONVICTION SHOULD BE REVERSED

POINT II THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION AND HIS STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL WERE DENIED WHEN THE TRIAL JUDGE ALLOWED NUMEROUS INSTANCES OF HEARSAY EVIDENCE OF A NON-TESTIFYING EXPERT WITNESS AND EXHIBITS TO BE PRESENTED TO THE JURY, THEREFORE THE PREJUDICE FROM THE CUMULATIVE EFFECT SHOULD REQUIRE REVERSAL OF THE DEFENDANT'S CONVICTION

POINT III THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION TO SUPPRESS THE EYE-WITNESS'S IDENTIFICATION BECAUSE THE PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE, WHICH CAUSED AN IMPERMISSIBLE MISIDENTIFICATION PROCEDURE THEREFORE THE CONVICTION SHOULD BE REVERSED

SUB POINT (A)

THE USE OF AN UNQUALIFIED TRANSLATOR DURING THE IDENTIFICATION PROCEDURE CAUSED IRREPARABLE HARM AND DENIED THE DEFENDANT HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW THEREFORE THE CONVICTION SHOULD BE REVERSED

POINT IV THE PRESENTATION OF A WITNESS BEFORE THE JURY IN PRISON GARB AND SHACKLES DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL THEREFORE THE CONVICTION SHOULD BE REVERSED

POINT V THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO CONDUCT A COMPETENCY HEARING OF A WITNESS WHO TESTIFIED TO BEING UNDER THE INFLUENCE OF DRUGS WHILE TESTIFYING IN COURT AND AS A RESULT DEPRIVED THE DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL THEREFORE THE CONVICTION SHOULD BE REVERSED

POINT VI THE INTRODUCTION OF OTHER-CRIMES- EVIDENCE DURING DEFENDANT'S TRIAL WAS SO PREJUDICIAL AS TO DEPRIVE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL THEREFORE THE CONVICTION SHOULD BE REVERSED

POINT VII THE DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BY THE FAILURE OF COUNSEL TO OBTAIN THE SERVICES OF AN EXPERT FOR THE BALLISTICS EVIDENCE AND FOR A HANDWRITING ANALYSIS FOR A LETTER ADMITTED INTO EVIDENCE THEREFORE THE CONVICTION SHOULD BE REVERSED

Defendant's first argument in his pro se brief deals with the trial court's admission of expert ballistic testimony by Detective Louis Alarcon of the Newark Police Department. Detective Alarcon examined the shell casings and fragments recovered from the scenes of the May 6 and May 19 shootings and concluded that all were fired from the same weapon, a .380 caliber handgun. Detective Alarcon testified that he examined shell casings and bullets that were forwarded to him from the New York City Police Department following defendant's arrest in New York City while in possession of a .380 caliber handgun. Those casings and bullets were obtained when New York police fired the weapon in their own ballistics lab.

Although he made no objection to this testimony below, defendant now contends that it deprived him of a fair trial. Not having interposed an objection below, defendant must establish that the trial court committed plain error in receiving this testimony. R. 2:10-2. We are satisfied that defendant cannot reach this standard.

We perceive defendant's argument with respect to this testimony to have two prongs: that the trial court did not require the State to demonstrate the scientific reliability of ballistics testing in accordance with the procedures noted in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and that Detective Alarcon did not personally fire the weapon recovered in New York City but relied upon exemplars supplied by the New York police. Neither, in our judgment, supplies any basis upon which to reverse defendant's convictions.

As to the first prong, we concur with the State that it rests upon a misapprehension of the legal principles governing the admission of expert testimony in criminal matters in New Jersey. The Supreme Court has carefully noted that in criminal matters, our courts continue to apply Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Chun, 194 N.J. 54, 91 (2008); State v. Harvey, 151 N.J. 117, 169 (1997).

As to the second prong, defendant made no challenge below to the authenticity of the shells and casings he received from New York. Indeed, the trial court, in the course of its charge, read a stipulation the parties had entered, that the New York Police Department handed over to the Newark police the sample bullets and shell casings they retrieved during the course of standard ballistic testing.

The second point defendant raises in his pro se brief also challenges the testimony of Detective Alarcon, but on a different basis. Defendant complains that the fact that Alarcon received the exemplars from New York made his testimony hearsay, in violation of his right of confrontation. Washington v. Crawford, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

Defendant's argument misapprehends the meaning of hearsay. Detective Alarcon's testimony rested upon his own microscopic examination of the casings and bullets. He did not testify as to the opinions and conclusions of others; he testified only as to the conclusions and opinions he himself reached after performing his own examination and analysis. Hearsay was not implicated in his testimony.

Defendant next challenges the trial court's rulings following a Wade hearing. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). We find no substantive merits to defendant's arguments. The trial court conducted an extensive hearing into the identification procedures followed by the Newark police and the Essex County Prosecutor's Office. After that hearing concluded, and counsel had the opportunity to argue their respective positions, the trial court did not place its decision immediately upon the record.

Rather, it took and carefully reviewed all of the exhibits marked at the time of the hearing. Later, it placed an extensive opinion on the record, setting forth its reasons for concluding that there was no impermissible suggestibility in the identification procedures that were followed. In the course of its opinion, the trial court made specific references to the particular exhibits that were used in the course of the identification procedure and why those exhibits supported its conclusions. We have no basis to reject the trial court's conclusions in this regard. State v. Locurto, 157 N.J. 463, 472 (1999). The Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures, set forth in State v. Herrera, 187 N.J. 493, 511-20 (2006), to which defendant refers in his brief, were not in force and effect at the time.

Defendant challenges another aspect of the identification procedure. When Sofia Rodriguez was shown the array prepared by the New York Police Department and then gave a formal statement, her cousin, Angela Arias, served as the interpreter. Ms. Arias was not a certified interpreter, but she had no involvement with the shootings and no personal knowledge of what had occurred. Defendant complains that it was reversible error to permit the English translation of Sofia's statement to be utilized at trial. The transcript reference provided by defendant with respect to this argument does not support his contention.

Defendant asserts that two of the witnesses who testified, Latique Mayse and Neptaly Escobar, did so before the jury in prison garb and shackles. This, defendant asserts, severely prejudiced his right to a fair trial. The record does not support defendant's argument. Indeed, the record specifically indicates that both Mr. Mayse and Mr. Escobar (who discovered the cell phones taken in the robbery that defendant had discarded and was using them in connection with his drug trade) were uncuffed before the jury entered the court room. The record does not indicate their attire, but both witnesses freely testified that at their appearances, they were incarcerated.

We note, moreover, that these two witnesses were called by the prosecution. Any skepticism on the part of the jury about their testimony because of their criminal record would seem to only redound to defendant's benefit.

Defendant's next argument in his pro se brief relates to the testimony of Kysheal Ivery. We noted earlier in our opinion that when Ms. Ivery appeared at defendant's trial, she said that she had been high on drugs when she testified against Mr. Auston and was high at the time of the shootings and as she testified at defendant's trial. Defendant contends that his conviction should be reversed because the trial court did not undertake an examination of the witness outside of the presence of the jury to determine her capacity to testify.

Defense counsel requested the trial court to conduct such a hearing but the trial court refused to do so, saying, "I have no intention of doing it. Looking at the woman she's stone cold sober. She can say what she wants to say. The jury can see whether she's impaired, they have a right to decide whether she's impaired." Based upon the trial court's observations and comment, we can perceive no abuse of discretion on the part of the trial court.

Defendant also challenges the introduction of other crimes evidence. We have already addressed this issue extensively earlier in our opinion. In his pro se brief, defendant adds to the argument that during the examination of Mayse, who was clearly a reluctant witness, when the prosecutor was confronting him about his earlier identification of defendant, Mayse responded at one point, "[I]f I have my back turned how do I see a gun, I got--if I got shot in my back?" As we noted earlier, the trial court had given a careful instruction that Mayse's testimony was to be restricted to the fact that he saw defendant with a .380 caliber gun on May 6 and that he had seen defendant fire the gun but that there was to be no testimony that Mayse was shot on May 6.

Defendant complains that the trial court committed reversible error in not giving a limiting instruction to the jury. We disagree. Defense counsel did not request such a limiting instruction at the time, which would only have had the effect of highlighting the testimony. During the charge conference, defense counsel raised the question and the court instructed that there was to be no mention in summation of Mayse having been shot. The trial court also noted that the statement was made so softly that it was not at all clear that the jury even heard it.

The final argument in defendant's pro se brief is that he received the ineffective assistance of trial counsel based upon the failure of the attorneys who represented him at trial to retain either a ballistics expert to counter the testimony of Detective Alarcon or a handwriting expert to refute the inference that defendant was the author of the redacted letter we set forth earlier in this opinion.

There are two prongs to the test whether a defendant's attorney provided ineffective assistance at trial: whether the performance of the attorney was indeed deficient and whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 52 (1987).

Defendant makes no showing that such reports were available and thus cannot satisfy the Strickland standard.

Defendant's convictions and sentence are affirmed.

 

The record contains various spellings of defendant's name, and that of his co-defendant, Omar Auston. For defendant, we have used the spelling on his judgment of conviction. For Mr. Auston, we have used the spelling in the indictment.

The letter contained several gang references, none of which were provided to the jury. In addition, the letter referred to the author facing the death penalty. Originally, the prosecutor had sought the death penalty for defendant. The jury was not made aware of this reference.

(continued)

(continued)

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A-4154-05T4

August 7, 2008