STATE OF NEW JERSEY v. NAQUAN O'NEIL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5134-02T5

A-5134-02T53644-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NAQUAN O'NEIL,

Defendant-Appellant.

______________________________________

 

Submitted March 21, 2007 - Decided:

Before Judges A. A. Rodr guez and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 01-09-3649.

Paul W. Bergrin, attorney for appellant (Annette Verdesco, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Naquan O'Neil was convicted of several offenses arising from the homicide of Hassan Hardy. The jury rejected defendant's allegations of self-defense. He was convicted of first degree aggravated manslaughter, as a lesser-included offense of murder, N.J.S.A. 2C:11-4a (Count I); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (merged into Count I); and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count II). After appropriate merger of the offenses, the judge imposed concurrent terms aggregating twenty two years with a NERA parole disqualifier. We affirm the convictions, but vacate the sentence on Count I and remand for resentencing pursuant to State v. Natale, 84 N.J. 458 (2005).

These are the salient facts. Defendant and Hardy knew each other. On March 16, 2001, they had an argument at the Terrace Ballroom in Newark and left in separate cars. They followed each other to a parking lot where the argument became physical. Hardy hit defendant with the door of his car. Defendant struck back with his fist. The two men separated and left the area. After a short period, they encountered each other on Chadwick Avenue in Newark. Hardy fired several shots at defendant, missing him. Because the arrival of the police was imminent, the men left the area.

Hardy went to the nearby home of Cynthia Crawford, a mutual friend. Defendant retrieved a .380 caliber handgun from a hiding place. He approached Hardy's parked vehicle, which was vacant and fired three shots into it. Defendant fled, keeping the handgun.

The following evening, at 9:00 p.m., defendant went to Crawford's home and picked her up in his car. Crawford noticed that defendant had a gun in his lap. Defendant dropped Crawford at her home at around 10:00 p.m. At around 1:00 a.m., defendant drove by Crawford's home, while Crawford and Hardy were standing outside. Hardy saw defendant and asked him why he shot at his car. The pair began shouting insults at each other from opposite sides of the street. According to defendant, Hardy reached into his pocket. Defendant responded by pulling the handgun from his own pocket and shooting Hardy in self-defense. Defendant fled from the scene. After the shooting, Crawford saw Terry Jones go through Hardy's pockets and remove: money, a cell phone and a handgun. Jones dropped the handgun next to the body as the police arrived.

Crawford testified that she was friends with defendant and Hardy. On March 18, 2001, Crawford saw defendant on her block at 12:30 a.m. He drove past her home, while Hardy was standing on the street a short distance from her home. At 1:00 a.m., she saw defendant exit a vacant lot on foot and proceed in the direction of her home. Standing across the street from Hardy, defendant said, "you like playing with guns" and then fired shots at Hardy. Hardy fell to the ground.

Defendant testified that he was friends with Hardy for approximately eleven years. He admitted to two prior CDS convictions and serving a five-year custodial term. According to defendant, on March 16, 2001, he went to the Terrace Ballroom and saw Hardy there. He and Hardy argued after leaving the Ballroom because he would not tell Hardy where he was going afterwards. The argument escalated. Hardy became angry and opened the car door to strike defendant. Defendant hit Hardy with an open hand. Hardy then struck defendant again with the car door, wherein defendant responded by punching Hardy in the eye.

After the fight, defendant went to Chadwick Avenue, exited his vehicle and sat on it. Hardy suddenly emerged from the bushes with a gun in his hand. According to defendant, Hardy then started firing gunshots at his legs and hit him on the head three times with the gun. Hardy then dragged defendant into a vacant lot, but released him when the police arrived.

Defendant conceded that he proceeded to the rear of the vacant lot and grabbed a .380 automatic weapon from "a local gun stash." He went to Hardy's vehicle, which was parked in front of Crawford's residence and fired three shots at the car. The following evening, he returned to Chadwick Avenue to visit his brother. He saw Crawford there. After going ice skating in the evening, defendant returned to Chadwick Avenue, armed with the weapon for self-protection.

Defendant saw Terry Jones while walking on Chadwick Avenue and then saw Hardy, directly across the street from him. Hardy was very angry over his damaged vehicle and words were exchanged between them. Hardy reached into his pocket and pointed a gun at him. Defendant fired one shot at Hardy in self-defense.

Out of the presence of the jury, the judge held a hearing regarding Hassan Harris's proposed testimony about defendant's prior bad act. According to Harris, six or seven months prior to Hardy's death, he saw defendant holding a revolver on his lap while seated in the driver's seat of a truck. The judge ruled that this evidence of defendant's prior bad act was admissible pursuant to N.J.R.E. 404(b). In front of a jury, Harris testified that at an unspecified time prior to the shooting, defendant possessed the weapon. In conjunction with this testimony, the judge gave a limiting instruction.

Essex County Prosecutor's Lieutenant Stephan Bright responded to a report of a homicide on Chadwick Avenue. At the scene, he saw Hardy's body on the grassy area between the curb and sidewalk, in front of a residence. He recovered two shell casings and a .25 caliber loaded handgun near the right leg of the body. This weapon had not been fired. A ballistics analysis of the shell casings revealed that they were both discharged from the same .380 caliber handgun. Crawford told investigators that defendant was the shooter. An autopsy revealed that Hardy died from one gunshot wound to the chest.

After one day of deliberations, the jury sent a note to the judge stating that it could not reach a unanimous verdict on the murder charge or its lesser-included offense. The judge told counsel:

. . . I have received a note from the jurors, which I marked C-8, which states: [W]e cannot decide on Count Number One.

I'm not going to [give a modified Allen charge to] them yet. I'm going to send them back in to continue deliberations . . . .

The judge then told the jury:

Ladies and Gentlemen, by my count you deliberated some five hours or so on Wednesday, and then we've had a lengthy break and you were deliberating less than an hour today when I received this note. I'm going to direct you to return back to the jury room and continue deliberations.

There was no objection to this instruction. Later that morning, the jury asked another question. Then the jury returned with a verdict on all counts.

On appeal, defendant contends:

THE TRIAL COURT'S INSTRUCTIONS TO THE JURY WERE UNDULY COERCIVE AND RESULTED IN A COMPROMISED VERDICT.

Our review of the record does not support this contention.

We are mindful that a judge may not coerce a jury into rendering a verdict. State v. Figueroa, 190 N.J. 219, 240, n.9 (2007); In re Stern, 11 N.J. 584, 588 (1953). Therefore, "[t]rial courts must understand . . . that nothing is more important than that they set the atmosphere of calm, unhurried and studied deliberation that is the hallmark of a fair trial." State v. Roberts, 163 N.J. 59, 60 (2000).

Here, we conclude that the charge as given by the judge was not coercive and did not violate the decision in State v. Czachor, 82 N.J. 392, 402 (1980), which modified the holding by the United States Supreme Court in Allen, supra, 164 U.S. at 492, 17 S. Ct. at 154, 41 L. Ed. 2d at 528. The factors that guide the judge's decision, i.e., length and complexities of trial and the quality and duration of the jury's deliberation, State v. DiFerdinando, 345 N.J. Super. 382, 392 (2001), did not compel the declaration of mistrial at the time that the jury sent the note. Rather, the continuation of deliberation was warranted. The jury had not indicated that it was hopelessly deadlocked. It had only deliberated for less than six hours. This short time span gave rise to an inference that further deliberation would resolve the deadlock. Therefore, we find no abuse of discretion.

Defendant also contends:

THE ADMISSION INTO EVIDENCE OF PRIOR BAD

ACTS CONSTITUTED REVERSIBLE ERROR.

We disagree.

Pursuant to N.J.R.E. 404(b), evidence of other crimes, wrongs or acts is admissible to prove "opportunity," and "preparation." Therefore, Harris's evidence was proper to prove that defendant, as well as Hardy, possessed a firearm. In defendant's case, he had possessed the handgun for some time before the shooting. Moreover, defendant admitted to possessing a handgun prior to shooting Hardy and shooting Hardy's car the night before. In light of this, the impact of Harris's prior bad acts testimony was dissipated.

Defendant also contends:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN THE SENTENCE OF THE APPELLANT.

Defendant argues that his sentence was illegal, excessive and not subject to NERA. We have not been provided with an adult presentence report. That makes review of this issue very difficult. Nonetheless, we can reject the argument that NERA did not apply based upon the record presented to us.

The homicide here occurred before NERA's effective date, June 29, 2001. Therefore, defendant's sentence is subject to the 1997 NERA version. This version required the following predicates to be proven beyond a reasonable doubt: that the actor caused death or serious bodily injury; or used or threatened the immediate use of a deadly weapon. N.J.S.A. 2C:43-7.2 (1997). Here, a finding that defendant caused Hardy's death was implicitly found by the jury when it returned its aggravated manslaughter verdict.

As to the sentence on Count II, we learn from the record that defendant has at least two prior convictions for possession of drugs, as he admitted at trial. He has been to State prison at least once. The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3) the risk that defendant will commit another offense; (6) the extent and seriousness of defendant's prior criminal record; and (9) the need for specific and general deterrence from law. The judge also found two of the mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (3) defendant acted under a strong provocation; and (4) there were substantial grounds tending to excuse or justify defendant's conduct induced or facilitated its commission. The judge imposed a five-year term on Count II, which is the lowest sentence for a second degree offense.

From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Josephs, 174 N.J. 44, 86 (2002); State v. Johnson, 42 N.J. 146, 161-62 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. Dalziel, 182 N.J. 494, 501-02 (2005); State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. Dalziel, supra, 182 N.J. at 501; State v. Roth, 95 N.J. 334, 364-65 (1984).

However, with respect to the sentence on Count I, the aggravated manslaughter conviction, we conclude that it does not comply with the mandates of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005).

Prior to Natale, in order to stay within the boundaries of Blakely v. Washington, a judge could only increase the sentence above the presumptive term by utilizing aggravating factors that were either based upon recidivistic factors, Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000); Abdullah, supra, 184 N.J. at 506 & n.2, or when defendant "stipulates to the relevant facts or consents to judicial fact-finding." Natale, supra, 184 N.J. at 495. With Natale's judicial removal of the presumptive terms from the New Jersey Criminal Code, the "'statutory maximum' authorized by the jury verdict . . . is the top of the sentencing range for the crime charged . . . ." Id. at 487.

Here, defendant was sentenced in May 2003, before the August 5, 2005 Supreme Court's decision in Natale. Therefore, defendant's appeal is within the "retroactive pipeline," and the sentence was increased based on aggravating factors other than prior offenses. In State v. Thomas, 188 N.J. 137, 153 (2006), the Supreme Court held that remand is necessary even if a defendant was sentenced beyond the "statutory maximum" based only on aggravating factors (3), or (6), or (9), which were formerly believed to fall within the recidivism exception. Moreover, the court noted that in order to be more constitutionally prudent, courts must "construe narrowly the 'facts' that Blakely's prior-conviction exception permits a sentencing court to consider." Ibid. A sentencing court's determinations that the offender is a risk to recidivate, the seriousness of the prior record, and the need to deter, are qualitative assessments made by the judge, which the judge is expected to make, but which go beyond the simple finding that the offender has a criminal history. Ibid. These determinations include "an evaluation and judgment about the individual in light of his or her history." Ibid. Judicial fact finding must be limited merely to a finding that the offender has a prior conviction. Ibid. The Court held:

that judicial fact-finding must be limited to the finding of the existence of the prior conviction. For defendants sentenced prior to Natale, we have no confidence that any who were sentenced above the presumptive sentence on the basis of aggravating factors (3), or (6), or (9) were sentenced exclusively on the mere judicial fact-finding of the existence of a prior conviction.

[Ibid. (emphasis added).]

Here, the judge found three aggravating factors present: (3), (6) and (9), and imposed a twenty-two year term on Count I. Therefore, a remand is necessary. Defendant must be resentenced pursuant to the post-Natale sentencing scheme.

Accordingly, the convictions and the sentence imposed on Count II are affirmed, but the sentence imposed on Count I is vacated and remanded for resentencing. We do not retain jurisdiction.

 

 

No Early Release Act, N.J.S.A. 2C:43-7.2.

Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 2d 528 (1896).

(continued)

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A-5134-02T5

August 10, 2007