STATE OF NEW JERSEY v. LUTHER C. THOMAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2191-04T4
2191-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUTHER C. THOMAS,

Defendant-Appellant.

________________________________

 

Submitted October 3, 2006 - Decided November 1, 2006

Before Judges Lintner, S.L. Reisner and

C.L. Miniman.

On appeal from the Superior Court of

New Jersey, Law Division, Mercer County,

01-02-0173.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender,

of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On August 6, 2004, a jury convicted defendant, Luther C. Thomas, of first-degree murder of Jermaine Stephenson, N.J.S.A. 2C:11-3a(1) and/or N.J.S.A. 2C:11-3a(2) (Count One); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Four); and third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b (Count Five). The judge denied defendant's motion for a new trial and imposed a mandatory extended term of life imprisonment with thirty-five years of parole ineligibility for first-degree murder because he had a prior Graves Act conviction. N.J.S.A. 2C:43-6c, N.J.S.A. 2C:43-7a(6) and N.J.S.A. 2C:44-3d. The life sentence was to run consecutively to a sentence imposed for a robbery that occurred three days prior to the murder and was the subject of a separate trial. The judge merged the two weapons convictions and imposed a ten-year concurrent sentence for possession of a weapon for an unlawful purpose. Penalties and fines were assessed. Defendant appeals. Except to remand to correct the judgment of conviction

to reflect the consecutive murder and robbery sentences, we affirm.

On May 25, 2000, at approximately 3:00 p.m., Jermaine Stephenson, known as Baby J, and Anthony Figueroa were spending time by the railroad tracks in Trenton, a location where people often sell and consume drugs and alcohol. Stephenson asked Figueroa, a known runner, to obtain two grams of crack cocaine so that Stephenson could sell it to a third person. Figueroa complied. As Figueroa walked to a nearby tree about twelve feet away, he saw the third person, later identified as defendant, test the cocaine, spit a piece on the ground, and put the rest in his pocket. As Figueroa began to heat up his own crack cocaine for use, he heard someone say, "holy shit," and he looked up to see defendant, who was approximately twelve feet from him, take a sawed-off shotgun from a duffel bag and shoot Stephenson in the back of the head as Stephenson turned around. Figueroa then heard the shooter say, "Fuck him," and saw him put the gun back in the duffel bag and walk away. Figueroa approached defendant and said, "[W]hat the fuck you do that for," but defendant "just looked at [him]." Figueroa waited until defendant was out of range and then left the tracks. He did not see anyone else, but admitted he was not paying attention to who else could have been there.

Theresa Kidd also saw the shooting. Her account of the incident was similar to Figueroa's. She testified that someone pumped a gun that looked like a sawed-off shotgun, which was "[a]bout 14 inches," or "big enough for him not to put it in his pocket," shot Stephenson in the back of the head, spit before he left, and then just "walked away . . . real fast." She also saw Figueroa at the scene. According to Kidd, the shooter pulled the gun from inside his clothing, not from a duffel bag. Kidd also admitted that she "was a drug addict," had been "smoking crack" during the incident, and may have had up to a gallon of gin.

Later that day, between 6:00 p.m. and 7:00 p.m., defendant visited his uncle, Larry Long, at 620 West State Street in Trenton. Long testified that defendant was "hyper," and told him that someone had been shot on Hoffman Avenue, which is by the tracks. Dominique Lewis, Long's girlfriend, testified, "[defendant] seemed agitated, like he was upset," because he owed Long money and had just argued with his girlfriend. According to Lewis, defendant had asked both her and Long whether they had heard that someone had been shot.

The police first investigated Melvin McQueen, whose new paramour was the mother of Stephenson's children, because they had information that McQueen and Stephenson engaged in a fight the week before the shooting. Although the police found a shotgun shell in McQueen's home, they dismissed him as a suspect because on the day of the shooting he had taken his aunt to the farmer's market around three o'clock.

Figueroa met with Detective Sergeant Anthony Manzo the day after the killing. As Figueroa and Manzo entered the police station, Figueroa caught a glimpse of defendant, who was alone in a holding cell being processed for an unrelated matter. Figueroa became visibly shaken and scared. They turned toward the elevator out of defendant's view and Figueroa identified defendant as the man who shot "Baby J." He was "100 percent sure." Although he could not remember defendant's name, Figueroa knew defendant because they had been confined together for about a week in a prison dormitory.

Manzo brought Figueroa to the violent crimes interview room. He then escorted defendant to another interview room at the opposite end of the criminal investigation bureau, gave him his Miranda rights, and obtained a waiver. Manzo took a statement from Figueroa and Lieutenant Tedder spoke to defendant. Defendant told Tedder that he "didn't do it because [he] was at [his] uncle's house at three o'clock," without Tedder informing him that the murder had been committed at that time.

At trial, Figueroa testified that he picked defendant's face from a photo array containing eighteen pictures, "six straight across . . . three up and all the way down." He had "[n]o doubt whatsoever" that the picture he chose was that of the killer. However, according to Manzo, he presented Figueroa with only one photo because Figueroa had known defendant on and off for three years. Figueroa was one hundred percent positive that he had correctly identified defendant as the shooter and signed the back of defendant's photograph. Figueroa identified defendant at trial. Again, he was "[m]ost definitely positive" and there was "[n]o doubt in [his] mind" that defendant was the shooter. Figueroa also described the gun as having a pump and a handle "so when you pump it, you can hold it."

Manzo interviewed Kidd at approximately 7:00 p.m. on May 26. Kidd identified defendant from a photo array containing eight pictures. At trial, Kidd identified defendant, stating first that she was "pretty sure" and later agreeing that she was "positive" of the identity. She explained, "I was just there. I seen what I seen. And, I couldn't believe it either. . . . You been up for a couple days [on cocaine], you get delirious. But, some things you just don't forget." According to Manzo, neither Figueroa nor Kidd was under the influence while at the police station.

After speaking with Kidd, Manzo interviewed defendant, who remained willing to talk. At first, defendant denied knowing anything about the homicide and stated that he had been at 620 West State Street all day. When Manzo informed defendant that eyewitnesses placed him at the scene, he initially denied it, but when Manzo said that the eyewitnesses saw defendant there with a shotgun, defendant said, "Manzo, I fucked up. My life is ruined." When Manzo asked him to explain, defendant admitted that he was there, but denied having a shotgun or shooting the victim.

Around 10:10 p.m., two lieutenants informed Manzo that they had recovered evidence from the apartments at 620 West State Street, including a pair of denim jeans, a pair of sneakers, and a red Federal shotgun shell, which was found inside the left sneaker. Defendant admitted that the items belonged to him, but denied wearing the clothing the day before or shooting anyone. The police never recovered the gun. Later, during questioning, defendant gave the following account of the incident:

I was walking on the tracks when a black or Puerto Rican guy had a shotgun. I was about eight feet from the guy. I heard the guy with the shotgun and the guy who got shot arguing. I was trying to break a piece of crack off when I heard a loud bang. I dropped the piece of crack and I looks up and saw the guy with the shotgun walk over to me. He handed to me the shotgun. I held the shotgun. The Puerto Rican guy bent down and picked up the crack. He broke it in half and gave me one of the halves. I gave him the shotgun back. The Puerto Rican guy ran down to BrynMawr.

When asked again whether he had shot the victim, he responded, "I told you, I didn't shoot the guy. If they get my prints off the shotgun, it's because the Puerto Rican guy handed it to me."

The detectives obtained statements from Long and Lewis. Less than two weeks prior to the shooting, they overheard defendant saying to his friends that he was going to buy a sawed-off shotgun, but did not have enough money yet. They did not take defendant seriously or become concerned because he liked to brag. Long related that during the days following that conversation, defendant told him that he had bought the gun, but Long never saw defendant with it. However, a few days before the shooting, defendant showed Long and Lewis yellowish-gold Federal shotgun shells in a box in his closet.

On appeal, defendant raises the following points:

I. THE TRIAL JUDGE ERRED IN ADMITTING EVIDENCE OF AN UNRELATED ROBBERY INTO THE HOMICIDE TRIAL.

II. THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR A NEW TRIAL AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

III. THE DEFENDANT'S SENTENCE IS EXCESSIVE.

Following a pretrial proffer, the judge permitted the State to present evidence of a robbery committed by defendant three days prior to the homicide to prove that he had the opportunity to use a sawed-off shotgun during the homicide because he had used a sawed-off shotgun during the robbery. At the pretrial hearing, the State presented testimony from Detective Pedro Medina, a seventeen-year veteran with the Trenton Police Department. Medina testified concerning his investigation of a robbery that occurred three days prior to the homicide. The videotape of the robbery showed two masked individuals robbing Yong's Deli, 227 Mulberry Street, Trenton. One of the suspects in the videotape, James Davis, pled guilty and gave a statement admitting to have committed the crime with defendant, who possessed a sawed-off shotgun. However, Davis later recanted, claiming that he was coerced. The second individual, armed with a sawed-off shotgun, was later identified as defendant. The video and a photograph created from the video showed one of the perpetrators with a sawed-off shotgun; however, the type of shotgun could not be discerned from the pictures.

Using the four-pronged test enumerated in State v. Cofield, 127 N.J. 328, 338 (1992), the judge found that the key factor was that a sawed-off shotgun was used and defendant was charged with the crime of possessing such a weapon. The judge, however, limited the testimony concerning the identification of defendant as the robber possessing the sawed-off shotgun and allowed use of the single photograph rather than the entire videotape.

Heather Brodie, Davis's girlfriend, identified defendant as being the person holding the shotgun in the video. She and Davis had picked defendant up prior to the robbery. At the time, defendant was carrying a backpack and wearing a black or dark blue denim outfit. Davis and defendant dropped her off at home prior to the robbery. She identified the man in the video, wearing her cream-colored sweatshirt, as Davis. Brodie identified the other man, who was wearing dark denim pants, a leather jacket, and holding a sawed-off shotgun, as defendant.

Following the robbery, Davis and defendant went to Davis's brother's home at 235 Bruenig Avenue, around the corner from Yong's Deli. At the time, Davis's brother and Keith Daniels were tenants, along with a third person, at 235 Bruenig Avenue. When defendant and Davis first came to the door, they were wearing masks. Daniels was able to identify both after they retreated to the basement where they were seen unmasked, counting coins that were contained in a plastic garbage bag. Although Daniels was not one hundred percent certain that he had correctly picked defendant out of the photo array, he testified that defendant was introduced to him as Lex, which is defendant's nickname. He identified defendant in court as the person accompanying Davis's brother that evening. The next morning, Daniels and the landlord found receipts from the deli in a trash bag that had been in the basement.

On appeal, defendant contends that the judge erred in admitting evidence of an unrelated crime, arguing that the still photograph of the robbery did not clearly establish that the shotgun was a pump-action shotgun similar to that used in the homicide; the robbery involved an accomplice while the homicide was committed by one person; and the evidence of defendant's involvement in the robbery was not clear and convincing and was unduly prejudicial.

The admissibility of other-crime evidence is governed by N.J.R.E. 404(b), which provides:

Other crimes, wrongs, or acts. 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 makes it clear that other-crimes, -wrongs, or -acts evidence is admissible only if relevant to prove an issue genuinely in dispute. State v. G.V., 162 N.J. 252, 257 (2000) (citing State v. Marrero, 148 N.J. 469, 482 (1997)). "Where the other-crime evidence tends to make the existence of a material fact reasonably likely, it is admissible subject to the 'probativeness/prejudice' balancing under . . . N.J.R.E. 403." Marrero, supra, 148 N.J. at 482.

The decision to admit other-crime evidence rests within the discretion of the trial judge. Id. at 483. An appellate court will generally defer to the trial judge's decision to admit other-crime evidence unless that decision constitutes an abuse of discretion. Ibid. "'The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process.'" Ibid. (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)). "Only where there is a 'clear error of judgment' should the 'trial court's conclusion with respect to that balancing test' be disturbed." Ibid. (quoting State v. DiFrisco, 137 N.J. 434, 496-97 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)).

Because of its prejudicial nature, an important factor to consider in "weighing the probative value of other-crime evidence is whether other, less-inflammatory evidence can prove the same fact in issue." State v. Oliver, 133 N.J. 141, 151 (1993) (citing State v. Stevens, 115 N.J. 289, 303 (1989)). Once the trial judge determines "that the other-crime evidence is material to a fact genuinely in issue and that the other-crime evidence is necessary, 'the probative value of the proffered evidence [must] be carefully balanced against the danger that it will create undue prejudice against the defendant.'" Marrero, supra, 148 N.J. at 482 (quoting Stevens, supra, 115 N.J. at 302). The evidence is inadmissible "[w]here the probative value is outweighed by prejudice to the defendant." Ibid. (citation omitted). Thus, the crucial focus of N.J.R.E. 404(b), when assessed in conjunction with N.J.R.E. 403, "is to view it as a rule of exclusion rather than a rule of inclusion." Marrero, supra, 148 N.J. at 483 (citing Cofield, supra, 127 N.J. at 337-38).

N.J.R.E. 403 states:

Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

Our Supreme Court has established a four-prong test that must be satisfied prior to admission of evidence of other crimes. In order to be admissible:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[Cofield, supra, 127 N.J. at 338 (citation omitted); see also Marrero, supra, 148 N.J. at 483.]

The first prong of the Cofield/Marrero test requires that the other-crime evidence be relevant to a genuinely disputed material issue. The trial judge found the evidence relevant, noting that key issues were defendant's identity and his access to a sawed-off shotgun. Defendant's statement to the police, placing the responsibility on a man that he identified as a Hispanic, who momentarily handed him the sawed-off shotgun, rendered his prior use and access to such a weapon relevant to a material issue in the case. The judge also correctly observed that defendant's attempt to place the shotgun in the hands of a Hispanic was an attempt to implicate Figueroa as the person with the weapon. The judge appropriately concluded that evidence of the robbery was relevant.

Defendant asserts that the robbery and murder are not sufficiently similar to establish an "'unusual and distinctive'" methodology "'to earmark the crime as defendant's handiwork.'" State v. Fortin, 162 N.J. 517, 532 (2000) (quoting State v. Reldan, 185 N.J. Super. 494, 503 (App. Div.), certif. denied, 91 N.J. 543 (1982)). Defendant's contention misses the mark. Here, the judge specifically noted that her finding of similarity was not based upon what is generally known as a signature crime. The judge observed that the inability to identify the specific type of shotgun from the photograph was not the key issue. Instead, she correctly found that the fact that a sawed-off shotgun was used in the robbery and that defendant was charged with the per se illegal possession of such a weapon was key to establishing the second-prong requirement of "similar in kind." Certainly, three days are sufficiently temporal to establish that the prior offense was reasonably close in time.

Equally unavailing is defendant's contention that the evidence of defendant's involvement in the robbery was not so clear and convincing as to establish the third prong. The third prong "requires some showing that the person against whom the evidence is being used actually committed the other crime or wrong." G.V., supra, 162 N.J. at 275 (citing Burbridge v. Paschal, 239 N.J. Super. 139, 155 (App. Div.), certif. denied, 122 N.J. 360 (1990)). The State bears the burden to show "defendant's responsibility for the prior offense by clear and convincing proof." Ibid. (citing State v. Harvey, 121 N.J. 407, 433 (1990), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991)). Here, the testimony of both Daniels and Brodie was sufficient to meet the State's burden.

"When evidence is admitted . . . for one purpose but is not admissible . . . for another purpose, the judge, upon request, shall restrict the evidence to its proper scope and shall instruct the jury accordingly but may permit a party to waive a limiting instruction." N.J.R.E. 105. Notwithstanding the foregoing, in the context of other-crime evidence, our Supreme Court has held that

once the prosecution has demonstrated the necessity of the other-crime evidence to prove a genuine fact in issue and the court has carefully balanced the probative value of the evidence against the possible undue prejudice it may create, the court must instruct the jury on the limited use of the evidence.

[Cofield, supra, 127 N.J. at 340-41.]

This instruction must "'clarify for the jury the narrow distinction between the permissible and impermissible uses of the other-crime evidence.'" Id. at 341 (quoting Stevens, supra, 115 N.J. at 308-09).

The judge did not permit the State to introduce the entire videotape or Davis's initial statement as to defendant's involvement in the robbery. She also would not let the State introduce the testimony of the witnesses to the robbery. Rather, she limited the evidence of the deli robbery essentially to the positive identification by Brodie and Daniels and the single photograph created from the videotape. Moreover, she gave an appropriate limiting instruction, advising the jury that the evidence could only be considered with respect to the issue of defendant's access to and/or possession of a sawed-off shotgun and the identity of defendant as the person who shot Stephenson. Under these circumstances, the judge minimized the likelihood of any undue prejudice. We find no error.

We next address defendant's assertion that, when consideration is given to the unreliability of the testimony of Figueroa and Kidd, the lack of forensic evidence, save a single shotgun shell, and the inconsistency of Davis's description of what defendant was purportedly wearing during the robbery, the State's proofs were insufficient to support the guilty verdict. On a motion for a new trial, a judge is obliged to grant the motion "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law." Dolson v. Anastasia, 55 N.J. 2, 7 (1969). Defendant's challenge to the sufficiency of the evidence is essentially directed at the credibility of the eyewitness who described the shooting and identified defendant as the perpetrator. Matters of credibility are within the exclusive dominion of the jury. State v. Butler, 32 N.J. 166, 196, cert. denied, 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960); see also State v. Locurto, 157 N.J. 463, 474 (1999). When viewed in a light most favorable to the State, the evidence clearly established defendant's guilt beyond a reasonable doubt. See State v. Reyes, 50 N.J. 454, 458-59 (1967). Defendant's contention to the contrary is without merit.

Lastly, we address defendant's contentions regarding the sentence imposed. Applying aggravating factor N.J.S.A. 2C:44-1a(3) (the risk that defendant will commit another offense), (6) (the extent and seriousness of defendant's prior convictions), and (9) (the strong need for deterring defendant and others from violating the law), the judge stated:

Now, your prior criminal history is predominantly one involving drug offenses, I will agree, but your first offense involved a crime of violence. I heard the testimony at both of the cases. At the trial of the robbery and the trial of the homicide, Mr. Thomas, there is no way to minimize the seriousness of either of those offenses. There's no offense more serious than murder.

. . . .

The testimony reflected a crime that was absolutely senseless. No purpose, no rhyme or reason. No reason in the world that you would have, number one, to carry a sawed-off shotgun; and secondly, to discharge it in the back of somebody's head. Likewise, the robbery, no doubt forever changed, as I probably indicated earlier, the lives of two people who were working hard to make a living. Apparently, not making a great deal of money, but you and a co-defendant were convicted of going into the store at 8:30, pointing a sawed-off shotgun at two innocent people and taking a little bit of money that was there.

They were both senseless crimes. The murder was absolutely cold-blooded, just days after having completed the robbery.

In evaluating the aggravating and mitigating factors, I find the following apply:

Given your record, and particularly, the commission of two serious offenses, within days, both involving a very dangerous weapon, a sawed-off shotgun, I find that there is a significant risk that you will commit another offense. I have also considered in evaluating that risk, both the extent of your prior criminal record and the seriousness of this offense and the robbery in particular. There is no crime that calls for a greater need to deter than homicide.

The judge found no mitigating factors. Defendant was subject to a mandatory extended term of imprisonment of between thirty-five years and life with a thirty-five year period of parole ineligibility, because he had a prior Graves Act conviction. N.J.S.A. 2C:43-6c; N.J.S.A. 2C:43-7a(6) and N.J.S.A. 2C:44-3d.

Relying on State v. Jarbath, 114 N.J. 394, 404 (1989), defendant argues that the judge erred in focusing on the death of the victim in considering the seriousness of the offense as an aggravating factor. As an element of murder, death is one of the considerations accounting for the thirty years to life sentence that can be imposed for a murder conviction. Although it appears from the judge's statement that there was some degree of double counting, we find no sound reason to disturb the life sentence imposed. The judge's isolated and fleeting reference that there is no more serious crime than murder did not, in our view, play an important part in the judge's ultimate determination. In our view, her comments concerning the manner in which the crime was carried out were more determinative of the quantum of the sentence imposed. See State v. Soto, 340 N.J. Super. 47, 71-72 (App. Div.) (death cannot be used as an aggravating factor if it is an element of the crime, but the brutal circumstances surrounding a death may be used), certif. denied, 170 N.J. 209 (2001), overruled on other grounds, State v. Dalziel, 182 N.J. 494 (2005); State v. Cullars, 224 N.J. Super. 32, 42 (App. Div.), certif. denied, 111 N.J. 605 (1988).

Defendant next argues that the judge erred by running the sentence for the murder conviction consecutive to the sentence she previously imposed for the robbery. In determining whether to impose concurrent or consecutive sentences, the judge reasoned:

The Court is to consider whether there were a series of offenses that were essentially an aberration, whether or not they involved [the] same victim, whether they occurred at the same time. I find they are separate and distinct offenses committed at separate times involving separate victims, and independent decision-making by you. Both of them are highly serious offenses, crimes of the first degree, and the law also provides that there is a policy against free crimes. If I were to sentence you to concurrent terms, essentially, I would be granting you a so-called free crime. Given the seriousness of these offenses, I do not find I can do that, so this sentence shall be consecutive to the sentence previously imposed on the robbery under Indictment 00-11-1283. (emphasis added).

Defendant correctly asserts that the judge's reference to the "no free crimes" guideline does not in and of itself support the imposed consecutive sentences for multiple offenses. See State v. Rogers, 124 N.J. 113, 121 (1991). However, "crimes involving multiple victims represent an especially suitable circumstance for the imposition of consecutive sentences." State v. Molina, 168 N.J. 436, 442 (2001) (citing State v. Carey, 168 N.J. 413, 428 (2001)). The consecutive sentencing guidelines to be applied when "an offender . . . has engaged in a pattern of behavior constituting a series of separate offenses or committed multiple offenses in separate, unrelated episodes" are:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominately independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense . . . .

[State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986) (footnotes omitted) (emphasis added).]

Here, contrary to defendant's contention, the judge undertook the appropriate discussion and analysis and correctly applied the Yarbough guidelines in imposing a consecutive sentence for the robbery and murder convictions. Moreover, we are satisfied that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. See State v. Ghertler, 114 N.J. 383, 393 (1989); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed. However, the matter is remanded to correct the judgment of conviction to reflect the consecutive murder and robbery sentences.

 

Following presentation of the State's case, the judge dismissed the Count Two charge of first-degree felony murder, N.J.S.A. 2C:11-3a(3), and the Count Three charge of first-degree robbery, N.J.S.A. 2C:15-1. The Count Six charge of certain persons not to possess a firearm, N.J.S.A. 2C:39-7b, was severed and held in abeyance, pending this appeal, to be tried on remand conditioned on a successful appeal.

The judgment of conviction denotes that the murder sentence is to run concurrently with the robbery conviction under Indictment No. 00-11-1283 but, at the sentencing hearing, the judge imposed a consecutive sentence.

Figueroa described a runner as someone who helps people who need drugs.

A medical examiner determined that the manner of death was a homicide, that the distance from the end of the gun barrel to the victim was within four feet, and that the individuals could have been standing nine or ten feet apart.

McQueen was not considered a suspect, but someone who the police "wanted to speak with."

McQueen's aunt provided the same story in an earlier interview with the police.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The actual photograph that Figueroa signed was misplaced prior to trial.

Trenton police officers obtained consent from Long and Lewis to search their apartments.

Defendant had been convicted of the robbery in a separate trial on February 9, 2004.

(continued)

(continued)

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A-2191-04T4

November 1, 2006