STATE OF NEW JERSEY v. DANIEL LOCUS


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2847-10T4




STATE OF NEW JERSEY,


Plaintiff-Respondent,


v.


DANIEL LOCUS, a/k/a

MICHAEL BAKER, a/k/a

DANIEL LOCUS, JR.,


Defendant-Appellant.

____________________________________

October 17, 2013


Submitted September 16, 2013 Decided


Before Judges Yannotti, Ashrafi and St John.


On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 05-09-3713 and 09-02-0791.


Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the briefs).


William W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).


Appellant file a pro se supplemental brief.


PER CURIAM

Defendant Daniel Locus was tried before a jury and found guilty of first-degree murder and other offenses. Defendant appeals from the judgment of conviction entered by the trial court on August 13, 2010. We affirm.

I.

On February 25, 2009, defendant was charged in Camden County Indictment No. 09-02-0791 with first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2 (count four); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count five). Thereafter, the trial court conducted a Wade1 hearing and determined that the identifications by the State's witnesses were admissible.

At the trial, the State presented evidence which established that on June 9, 2008, at around 10:30 p.m., Anthony Ball was shot in the head at close range near an abandoned house on Pine Street in Camden. The gun used was a .380 caliber Llama-brand pistol, and a .380 casing was found on the first step of the house. The murder weapon was never found. Ball was taken to a hospital and placed on a respirator. He died two days later after his mother authorized the removal of life support.

Madonna Caraballo was Ball's friend. She had been using heroin, crack cocaine and alcohol for years. In June 2008, Caraballo was homeless. In the previous months, Caraballo had been purchasing crack cocaine from defendant, whom she knew as "Pooh" or "Pooh Bear." Defendant operated out of a "drug house" on Pine Street in Camden, which was known as "Lawrence's House."

Sometime during the day on June 9, 2008, Caraballo and Ball purchased cocaine from defendant. That night, Caraballo and Ball wanted to purchase more cocaine but they did not have any money. Ball suggested that they steal some drugs from defendant's stash, which he kept in an alley adjacent to an abandoned house on Pine Street, across the street from Lawrence's House. They planned to have Caraballo meet defendant behind the abandoned house and keep him occupied there by offering to engage in a sex act, while Ball took the drugs. However, when defendant met Caraballo behind the house, he told her to "get lost" and left.

Caraballo testified that she came out from behind the house and started to walk down the alley. She saw Ball crouched near the drug stash at the other end of the alley. Ball got up and started to walk back to Pine Street. As Caraballo reached the sidewalk on Pine Street, she saw a flash and heard a shot. She did not realize immediately that Ball had been shot. Caraballo left with her friend, Walter Boyd (Boyd), who told Caraballo he could not believe "Pooh" had done "that."

Boyd also had purchased crack from defendant from time to time. He knew Ball. Boyd testified that on the evening of June 9, 2008, he walked near the abandoned house with Caraballo, but they separated while Boyd approached defendant, who was standing in front of Lawrence's House.

Boyd purchased drugs from defendant and, as he was walking away, he heard a sound like a gunshot. Boyd looked back. He saw Ball fall near the alley and observed defendant running away. Boyd said defendant was the only person near Ball on that side of the street at the time and defendant was the only person he saw running away from Ball.

Patricia Myers knew defendant as well. She had been purchasing drugs from him regularly during the previous two years. Myers also knew Ball. They had smoked crack cocaine together. On the evening of June 9, 2008, Myers was on the corner of Pine Street and St. John's alley. She did not have any money to buy drugs. Defendant and other persons told her to leave the area. She moved down the street and sat on the top of the steps in front of a row house.

Myers saw Ball come down the street. He went over to the abandoned house and into the alleyway. Myers observed Ball reach down into the weeds where the drugs were stashed. Myers said that defendant was across the street by Lawrence's House. He walked across the street toward Ball and, according to Myers, said he was going "to blow" Ball's "fucking brains out." According to Myers, Ball walked back to the house by the alley. Defendant approached Ball and shot him in the head. Myers said she saw the flash of the gun. She also saw Ball fall and defendant run off. Myers ran away. She said she was "scared for [her] life."

Angela Bumpers had known defendant for about fifteen years. She also knew Ball. In June 2008, Bumpers was using heroin and crack cocaine and had been purchasing drugs from defendant in the previous months. On the evening of June 9, 2008, Bumpers was sitting out near a gas station at the intersection of Pine Street and Broadway, facing Pine Street. She saw Ball walk past her and head toward Lawrence's House. Ball went across to the abandoned house. Bumpers heard a gunshot. She saw Ball grab his head and fall. She stated that defendant was the only person around Ball, and she saw him put a gun in his pocket and run away.

Investigator James Bruno responded to the scene of the shooting. Bruno initially learned that someone named "Pooh" or "Pooh Bear" was the last person seen with Ball. On further investigation, Bruno learned that James Williams (Williams) went by the name Pooh and had been arrested on unrelated charges on June 10, 2008, three hours after the shooting. Bruno interviewed Williams, who told him that, while he had seen Ball on the night of the shooting, he was not in the area when the shooting occurred.

On June 11, 2008, the Camden police executed a search warrant at Lawrence's House. The police obtained information from defendant, who was outside the house at the time. On June 12, 2008, Bruno learned that Myers had been an eyewitness to the shooting. Myers told Bruno she was present at the time and the man responsible was her drug dealer, from whom she had purchased drugs on a regular basis over two years, including the night of the murder.

Bruno showed Myers a photograph of Williams, but she said he was not the shooter. Bruno thereafter asked the police intelligence unit to compile a book of photographs of persons who had been arrested in the area of Lawrence's House, or who had some connection to the area. The book contained twenty-two photos, including photos of Williams and defendant.

In early July of 2008, Bruno was notified that Caraballo wanted to speak to him about the homicide. At the time, Caraballo was incarcerated in the county jail. Caraballo told Bruno that on the evening of June 9, 2008, she was behind the abandoned house where Ball was shot. Caraballo said Boyd observed the shooting. Later, Bruno spoke with Boyd, who told him that Bumpers, who was also in the county jail, had also witnessed the shooting.

On July 2, 2008, Caraballo, Boyd, and Bumpers were separately interviewed and shown the book of twenty-two photos. At the time, neither Williams nor defendant were suspects. Boyd identified defendant as the person from whom he had purchased drugs shortly before Ball was shot. Boyd said that after he purchased the drugs, he heard a gunshot. He turned and saw defendant running from the place where Ball was shot and fell.

Caraballo identified defendant as someone she knew as "Pooh Bear" and from whom she regularly purchased drugs. Bumpers told the investigators that she knew defendant and saw him with a gun in his hand on the night of the homicide. Bumpers said she saw a flash when the gun went off, and defendant ran from Ball as he fell.

The following day, Bruno met with Myers to determine if defendant was the person whom she saw shoot Ball. Bruno showed Myers a picture of defendant, but did not tell Myers who he was or whether any other witnesses had identified him. Myers identified defendant as the shooter.

Defendant was arrested on July 7, 2008. While defendant was incarcerated in the county jail, he spoke about the charges with Ernest Braxton, who also was incarcerated there. Defendant asked whether Braxton could help him secure an insanity plea. Defendant and Braxton had both worked for the same person selling drugs at Lawrence s House, and they had known each other for two or three years. Braxton also knew Ball.

Braxton testified that defendant told him they locked him up for" Ball's murder. Braxton said he had heard Ball had been shot in the back of the head, but defendant indicated with hand gestures that Ball was shot in his left temple. Braxton subsequently reported this conversation to Bruno.

Braxton further testified that, a few days before the shooting, defendant asked him for bullets for his gun. Braxton asked defendant what kind of gun, and defendant pulled out his gun and said .380. Braxton was familiar with guns and recognized the gun as a Llama, and said You need [a] .380 Llama. [You] [d]on t need .380s, you need [a] .380 Llama.

Gerald Feigin, M.D., the Medical Examiner of Camden, Gloucester, and Salem Counties, testified that he performed an autopsy on Ball on June 12, 2008. Dr. Feigin determined that the death was a homicide, caused by a gunshot wound inflicted from about six inches away from the left side corner of Ball s left eye, with the bullet passing through the brain and lodging in the back right side of his skull.

Detective Sergeant James Ryan, an expert in firearms, examined the bullet taken from Ball s skull and the shell found at the crime scene. Ryan said the shell was a .380 caliber casing and the bullet was consistent with a .380 caliber bullet. He also said the bullet had been fired from a gun manufactured by Llama.

Defendant did not testify at trial and presented no witnesses on his own behalf. After the jury began its deliberations, the State agreed to dismiss count five, which charged defendant with certain persons not to have weapons. The jury found defendant guilty on the remaining four counts.

Defendant subsequently filed a motion for a new trial. On August 13, 2010, the judge denied the motion and sentenced defendant. The judge merged count two (possession of a weapon for an unlawful purpose) with count one (murder), and sentenced defendant on count one to fifty-five years of imprisonment, with a period a parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count three (unlawful possession of a weapon), the judge sentenced defendant to a concurrent eight-year term, with a three-year period of parole ineligibility. In addition, on count four (endangering an injured victim), the judge imposed a concurrent five-year term, with two-and-a-half years of parole ineligibility.2 The judge entered the judgment of conviction dated August 13, 2010, and this appeal followed.

Defendant raises the following issues for our consideration:

POINT I

THE PRE-TRIAL PHOTOGRAPHIC IDENTIFICATIONS AND IN-COURT PHOTOGRAPHIC AND PERSONAL IDENTIFICATIONS OF DEFENDANT BY PATRICIA MYERS, WALTER BOYD, ANGELA BUMPERS AND MADONNA CARABALLO WERE IMPERMISSIBLY SUGGESTED.


POINT II

THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR A NEW TRIAL.


POINT III

THE PROSECUTOR ENGAGED IN MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.


POINT IV

THE TRIAL COURT'S JURY INSTRUCTIONS WERE INADEQUATE RESULTING IN UNDUE PREJUDICE.


POINT V

IRRELEVANT AND UNDULY PREJUDICIAL TESTIMONY WAS ADDUCED FROM ERNEST BRAXTON REGARDING BRAXTON'S PLACEMENT IN PROTECTIVE CUSTODY AND BRAXTON'S OPINION THAT HE WOULD NOT HAVE ELECTED TO STAND TRIAL IF HE WERE INNOCENT OF THE CHARGES.


POINT VI

THE TRIAL COURT ERRONEOUSLY PRECLUDED THE DEFENSE FROM ESTABLISHING AND ARGUING THAT BALL WAS KILLED BY A THIRD PARTY, THEREBY DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE.


POINT VII

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.


In his pro se supplemental brief defendant raises the following issue:

POINT VIII

THE TRIAL JUDGE COMMITTED PLAIN ERROR (A) WHEN IT USED DEFENDANT'S OUT-OF-COURT STATEMENT CONCERNING OTHER CRIMES EVIDENCE AND (B) WHEN IT ERRONEOUSLY INSTRUCTED THE JURY ON ITS USE THUS VIOLATING R. 404(B) AND HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND TRIAL BY JURY. ART 1, 10 OF THE N.J. CONST. REQUIRING REVERSAL OF DEFENDANT'S CONVICTION.



I. WERE THE PRE-TRIAL PHOTOGRAPHIC IDENTIFICATIONS AND IN-COURT PHOTOGRAPHIC AND PERSONAL IDENTIFICATIONS OF DEFENDANT BY PATRICIA MYERS, WALTER BOYD, ANGELA BUMPERS AND MADONNA CARABALLO IMPERMISSIBLY SUGGESTED?

II.

We turn first to defendant's contention that the trial judge erred by admitting the identifications of Myers, Boyd, Bumpers and Caraballo. Defendant maintains that the identifications were the result of impermissibly suggestive procedures and not reliable. We cannot agree.

We note initially that, in support of his arguments, defendant relies upon the recent decision in State v. Henderson, 208 N.J. 208 (2011), in which the Court modified the framework for determining the admissibility of identification evidence. However, as defendant recognizes, in Henderson, the Court decided that the new framework would only apply to future cases. Id. at 300-02.

Thus, the test for admission of identification testimony to be applied in this case is the test established in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed.2d 140 (1977), and State v. Madison, 109 N.J. 223 (1988). Henderson, supra, 208 N.J. at 300-02. The Manson/Madison test "requires courts to determine first if police identification procedures were impermissibly suggestive; if so, courts then weigh five reliability factors to decide if the identification evidence is nonetheless admissible." Id. at 224 (citing Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154; Madison, supra, 109 N.J. at 232-33).

In this case, the judge conducted a Wade hearing and determined that the identifications were admissible. The judge found that there was nothing suggestive about the procedures employed by the police in obtaining those identifications. As we stated previously, the investigators showed the witnesses the book of twenty-two photographs, but they did not suggest that defendant was the perpetrator when doing so.

Indeed, the record shows that, at the time the witnesses were shown the photos, the investigators did not have a target. Furthermore, when the investigators showed the witnesses the photos, they did not give the witnesses any suggestive instructions. The investigators merely asked the witnesses whether they recognized anyone who was at the scene of the shooting and whether anyone looked familiar.

In addition, the judge found that the identifications were independently reliable. Myers, Boyd, Bumpers and Caraballo all knew defendant personally and their identifications were based on that knowledge. The witnesses stated that they were certain of their identifications. Moreover, the identifications occurred within a few weeks after the shooting, three of the witnesses had purchased drugs from defendant shortly before that incident, and all four witnesses observed defendant around the time Ball was shot.

Although defendant takes issue with the fact that Myers identified defendant after being shown a single photo, this was not a photographic "show-up." As Bruno explained, Myers was shown the photo to confirm that defendant was a person she had seen shoot Ball. Even if this procedure was impermissibly suggestive, Myer's testimony established that her identification was sufficiently reliable for its admission at trial.

Defendant also argues that the judge erred in instructing the jury on the identifications because he failed to point out what defendant claims were factual contradictions in the witnesses' accounts. However, the judge instructed the jury in accordance with the then-applicable model jury instructions. Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" (6/4/07).

Defendant did not object to the instructions. The absence of any discussion of the perceived flaws in the testimony of the State's witnesses was not an error, let alone an error clearly capable of producing an unjust result. R. 2:10-2. See State v. Robinson, 165 N.J. 32, 44-45 (2000) (noting that the trial judge does not have an obligation to tell the jury of weaknesses in the State's case, that obligation rests with defense counsel).

III.

Next, defendant argues that the judge erred by denying his motion for a new trial. Defendant contends that a post-trial defense interview of Myers indicated that her identification was the result of an impermissibly suggestive process. Defendant also contends that this new information, as well as the State's alleged infringement upon his right to contact Myers, violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.2d 215 (1963).

Defendant therefore argues that his convictions should be reversed and the matter remanded for a new trial. Alternatively, defendant argues that the matter should be remanded for a hearing on Myers' post-trial information. We disagree.

In order for newly discovered evidence to warrant a new trial, the defendant must establish "that the evidence is 1) material, and not 'merely' cumulative, impeaching or contradictory; 2) that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and 3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).

Here, the judge found that defendant failed to establish a Brady violation. The judge determined that the State did not interfere with defendant's right to speak with Myers. The judge noted that the State's representative had credibly stated that Myers could determine whether she would or would not speak with defense counsel, an assertion that Myers confirmed under oath. The judge also noted that if defense counsel believed his access to Myers had been impermissibly restricted, he could have filed a motion or issued a subpoena to Myers.

The judge additionally found that defendant had not presented newly discovered evidence warranting a new trial. The judge said Myers' post-trial statements were suspect because they were made after defendant's sister confronted and blamed her for defendant's conviction and asked her to recant. The judge noted that such circumstances were not conducive to producing credible statements. The judge found that Myers' post-trial statements were not material because they only addressed ancillary matters. Myers never denied that she knew defendant or recanted her statements as to what she had seen on the evening of June 9, 2008.

Furthermore, the evidence probably would not have changed the jury's verdict. As the judge found, the results of the Wade hearing would not have been different because defendant never established that there was a substantial likelihood that Myers had misidentified defendant. In addition, at trial, the State presented overwhelming evidence of defendant's guilt, wholly aside from Myers' testimony.

We conclude that the record supports the judge's findings and his decision to deny defendant's motion for a new trial. We also conclude that an evidentiary hearing on Myers' post-trial statements is not required. Defendant's arguments to the contrary are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

IV.

Defendant additionally argues that the assistant prosecutor made inappropriate remarks in her summation that singularly or together deprived him of his right to due process and a fair trial. Again, we disagree.

"Prosecutors are expected to assert vigorously the State's case and are given considerable leeway in delivering their summations." State v. Daniels, 182 N.J. 80, 96 (2004) (citing State v. Smith, 167 N.J. 158, 177 (2001)). "Not every improper prosecutorial statement will warrant a new trial." Ibid. A reviewing court may only reverse a criminal conviction if the prosecutor's comments are "'so egregious that they deprived the defendant of a fair trial.'" Ibid. (quoting State v. Frost, 158 N.J. 76, 83 (1999)).

The reviewing court should determine "'(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.'" Id. at 96-97 (quoting Smith, supra, 167 N.J. at 182). If defense counsel did not object to the remarks, they will not be deemed prejudicial. Frost, supra, 158 N.J. at 83.

Defendant asserts that Myers, Boyd, Caraballo and Bumpers gave "glaring and irreconcilable" accounts in their testimony. According to defendant, the assistant prosecutor "must have known" that one, if not all, of these accounts was false or that there was a substantial likelihood this was so. Defendant contends that the assistant prosecutor improperly stated in her summation that, when the jurors examined all of the evidence, they would conclude that the witnesses had not contradicted each other. According to defendant, the statements cast "unjustified aspersions" upon his attorney, misstated the record and used "specious reasoning" to negate defense counsel's arguments.

However, there is no basis in the record for defendant's contention that the assistant prosecutor knowingly adduced false testimony from any witness. The assistant prosecutor merely argued that the testimony of the witnesses was essentially consistent, and some variations in their accounts did not render the testimony contradictory or false. In making these remarks, the assistant prosecutor did not denigrate the defense. Moreover, defense counsel never objected to the comments, thereby indicating he did not view them to be as prejudicial.

Defendant further argues that the assistant prosecutor improperly commented on a letter that defendant had written to another inmate, in which he referred to Braxton as a "rat" and mentioned the State's other witnesses by name. Defendant contends that the assistant prosecutor improperly asked the jury to draw an inference of guilt from the absence of any statement in the letter that Braxton or the other witnesses were liars.

Even if the assistant prosecutor's comment was not sufficiently supported by the statements in the letter, the judge provided the jury with a curative instruction, in which he indicated that what the attorneys say is not evidence. Among other things, the judge told the jurors "to confine yourselves to the words of the letters and only the reasonable inferences, if any, you make with respect to the letters." In our view, the judge's instruction cured any potential for prejudice arising from the assistant prosecutor's comment.

In addition, defendant contends that the assistant prosecutor improperly referred to certain statements he made when he was arraigned on the charges related to Ball's shooting. At the arraignment, defendant asserted his innocence and said that the State's case was baseless because "[t]hey got no gun, no motive, no nothing."

The assistant prosecutor noted in her summation that, at the time of the arraignment, the fact that the gun used in the shooting had not been recovered had not been publicly disclosed. She said that the jury could draw a reasonable inference that defendant knew the State did not have the gun because defendant had disposed of the weapon.

Defendant contends that, in these remarks, the assistant prosecutor improperly asked the jury to reach a conclusion that was not supported by the evidence. However, in our view, the assistant prosecutor's remarks were a fair comment on the evidence. The assistant prosecutor properly asked the jury to draw the reasonable inference that defendant knew the State had not recovered a gun because he had disposed of it. Defense counsel did not object to the comment, thereby indicating he did not consider it to be prejudicial.

Defendant also takes issue with the assistant prosecutor's closing remarks, in which she stated that defendant was "counting on [the jurors] to feel the same way he feels, that [the witnesses] are crack heads [who] are not worthy of our belief in any way." The assistant prosecutor said the jury should prove defendant "wrong on that." Defendant contends that there was no evidence to support the assistant prosecutor's remarks.

We cannot agree. Defendant had referred to the State's witnesses as "crack heads" when he was arraigned, and the assistant prosecutor reasonably stated that defendant was "counting" on the jury to reject their testimony as lacking credibility because of their involvement with drugs. Indeed, defense counsel had made that point in his summation. There was nothing improper about the assistant prosecutor's remarks.

Defendant's other arguments regarding the assistant prosecutor's summation are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). Accordingly, we reject defendant's contention that the assistant prosecutor's remarks denied him of his right to due process and a fair trial.

V.

Defendant also argues he is entitled to a new trial because of statements that Braxton made while testifying. In his direct testimony, Braxton stated that he requested protective custody for himself and his wife upon his release from jail. Defendant maintains that Braxton's statement was "highly inflammatory" because it suggested that Braxton and his wife needed the State's protection after Braxton implicated defendant in Ball's murder.

However, on cross-examination, defense counsel asked Braxton if his request for protective custody was merely a request to have the State help pay for the hotel where he and his wife were staying. Braxton agreed. Defense counsel further elicited testimony from Braxton confirming that no one was posted outside the hotel room to protect Braxton and his wife while they were staying there, and Braxton had not sought protective custody while he was in jail. Defense counsel did not object to Braxton's comment. We conclude the comment did not prejudice defendant.

Defendant additionally claims he was prejudiced by certain statements Braxton made during cross-examination. Braxton confirmed that he told defendant that if he did not shoot Ball, he should tell the police who did. Braxton added that he would not spend thirty or forty years in jail for something someone else did. He also stated, "If I didn't do it, I wouldn t be sitting here." Defendant contends that Braxton's comments suggested that the fact that defendant was on trial "was evidence of his consciousness of guilt[.]"

However, as the State argues, Braxton's comments were a statement as to what he believed, not a statement about what defendant thought. Indeed, there was no evidence showing that defendant shared Braxton's views on this particular topic. We therefore conclude that defendant was not prejudiced by Braxton's comments.

VI.

Defendant further argues that the judge erred by refusing to permit him to establish and argue that a third-party may have shot and killed Ball.

"A defendant is entitled to prove his innocence by showing that someone else committed the crime with which he or she is charged." State v. Jimenez, 175 N.J. 475, 486 (2003) (citing State v. Koedatich, 112 N.J. 225, 297 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed.2d 803 (1989); State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed.2d 873 (1960)). "The right to the defense of third-party guilt is of constitutional dimension." Ibid. (citing Koedatich, supra, 112 N.J. at 297).

However, the proof of third-party guilt must have "'a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" Id. at 487 (quoting Sturdivant, supra, 31 N.J. at 179). It is "'not enough to prove some hostile event and leave its connection with the case to mere conjecture.'" Ibid. (quoting Sturdivant, supra, 31 N.J. at 179). The evidence must establish "'some thread capable of inducing reasonable men to regard the event as bearing on the State's case.'" Ibid. (quoting Sturdivant, supra, 31 N.J. at 179).

The record shows that, shortly before the trial, defense counsel asked the State to provide discovery related to two incidents in which Ball was allegedly shot. Ball's mother apparently believed that her son was previously shot for stealing drug stashes. The State could not provide information about one of the alleged shootings, but provided discovery concerning the other incident, including information that Tyhune Jones had been convicted for that shooting.

However, Jones was incarcerated on June 9, 2008, when Ball was fatally shot. Defense counsel said that he was seeking other evidence in an effort to show that Jones could have been responsible for Ball's death, perhaps through an accomplice. At the time of trial, Ball's mother was deceased. In addition, defense counsel did not proffer the evidence he wanted to present and even conceded that he did not have evidence that Ball had previously suffered gunshot wounds.

The judge ruled that defendant would not be able to present evidence concerning the two alleged shootings. The judge found the assumption that the June 9, 2008 shooting was related to the earlier incidents was "mere conjecture" and the evidence did not meet the threshold required for admission on the issue of third-party guilt.

The judge noted that Jones was in jail at the time Ball was murdered, and it would not have been possible for him to have committed that offense. The judge nevertheless permitted defense counsel to question Bruno about the prior shootings, as part of an inquiry into whether his investigation was thorough.

The record fully supports the judge's ruling. Defendant failed to proffer sufficient evidence to raise an inference of third-party guilt.

VII.

In his supplemental brief, defendant argues that the judge committed plain error by allowing the State to use his out-of-court statement concerning his involvement with the sale of illegal narcotics. Defendant contends that the judge did not undertake a proper analysis under State v. Cofield, 127 N.J. 328 (1992). He further argues that the judge's limiting instructions regarding this evidence were inadequate. In our view, these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Suffice it to say, however, the judge conducted a pre-trial hearing concerning this evidence and made the findings required by Cofield for its admission. The judge also gave the jury detailed instructions on the manner in which the jury could consider this evidence.

Furthermore, defendant's attorney did not object to the instructions. Defendant's contention that the instructions were not properly tailored to the facts of this case, and failed to provide guidance on how the jury could use the evidence, are meritless.

VIII.

Defendant also argues that his sentence is excessive. He maintains that the fifty-five year sentence on count one, with the period of parole ineligibility prescribed by NERA, amounts to a life sentence. Defendant argues that the sentencing judge failed to consider the real-time consequences of NERA in imposing his sentence. He contends that there was "nothing unusually egregious" about this homicide and, because he did not have a "particularly lengthy" criminal record, he should have only been sentenced at or near the minimum term. Defendant's arguments are entirely without merit.

Here, the trial judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3), the risk defendant will commit another offense; six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior record and the seriousness of the offenses of which he has been convicted; and nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from violating the law. The judge found no mitigating factors.

The judge's findings are amply supported by the record. Defendant's assertion that the crime was not "unusually egregious" is not supported by the record, which shows that defendant shot and killed a vulnerable, drug-addicted victim, because he stole drugs from defendant's stash. Moreover, the judge properly considered defendant's record as "extremely serious." The judge noted that defendant began a life of crime as a juvenile. The judge also was fully aware of the real-time consequences of the sentence he imposed.

We therefore conclude that defendant's sentences are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

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

2 In July 2005, defendant pled guilty to second-degree possession of a weapon for an unlawful purpose, as charged in Camden County Indictment No. 05-09-3713. Defendant was initially sentenced to two years of probation, with 364 days of incarceration, subject to home electronic detention. After his arrest on the charges related to Ball's shooting, defendant was charged with violating the conditions of probation (VOP). He was found guilty of VOP and re-sentenced to four years of incarceration, to be served consecutively to the sentences imposed on Indictment No. 09-02-0791.