STATE OF NEW JERSEY v. ALTEREKE NASH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5392-04T45392-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALTEREKE NASH a/k/a STANLEY

NASH a/k/a TERRY NASH a/k/a

WILLIE NASH,

Defendant-Appellant.

 

Submitted May 9, 2007 - Decided June 1, 2007

 
Before Judges Winkelstein, Fuentes and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 03-06-2328-I.

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

Paula T. Tow, Essex County Prosecutor, attorney for respondent (Debra G. Simms, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Altereke Nash, was indicted by an Essex County grand jury on June 26, 2003, and charged with the following offenses: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree felony murder of Javier Colon, N.J.S.A. 2C:11-3a(3) (count two); first-degree murder of Javier Colon, N.J.S.A. 2C:11-3a(1), (2) (count three); first-degree robbery of Javier Colon, Ben Allen, Vitor Baptista, Xavier Chavez, Paul Abreu, Ricardo Pacheco, and Laura Gonzalez, N.J.S.A. 2C:15-1 (counts four, five, eight, eleven, fifteen, sixteen, and seventeen); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts six, nine, thirteen, and eighteen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts seven, ten, fourteen, and nineteen); and second-degree aggravated assault of Xavier Chavez, N.J.S.A. 2C:12-1b(1) (count twelve).

On May 19, 2004, Judge John C. Kennedy denied defendant's motion to sever the charges in the indictment. The court subsequently denied defendant's motion to suppress an out-of-court identification and reconsider the motion for severance.

Following a trial before Judge Kennedy and a jury from January 18, 2005 through February 9, 2005, the jury convicted defendant of: one count of second-degree conspiracy to commit robbery (count one); two counts of first-degree robbery, of Vitor Baptista and Ricardo Pacheco (counts eight and sixteen); one count of second-degree robbery of Laura Gonzalez, as a lesser-included offense of first-degree robbery (count seventeen); two counts of third-degree unlawful possession of a weapon (counts nine and eighteen); and two counts of second-degree possession of a weapon for unlawful purposes (counts ten and nineteen). The jury acquitted defendant of the remaining charges.

On April 8, 2005, the trial judge denied defendant's motion for a new trial and sentenced him to a total of twenty-two years of incarceration, as follows: the judge merged defendant's conviction for conspiracy (count one) into his convictions for the robberies of Baptista, Pacheco, and Gonzalez (counts eight, sixteen, and seventeen), and, on count eight, first-degree robbery of Baptista, sentenced defendant to fifteen years imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; for unlawful possession of a weapon (count nine), the judge sentenced defendant to four years imprisonment, concurrent with his sentence on count eight; the judge merged the conviction for possession of a weapon for an unlawful purpose (count ten) with count eight; for first-degree robbery (count sixteen), the judge imposed a fifteen-year term of imprisonment, subject to NERA, concurrent with the sentence for counts eight and nine; for second-degree robbery (count seventeen), the judge sentenced defendant to a consecutive term of seven years imprisonment, subject to NERA; for third-degree unlawful possession of a weapon (count eighteen), the judge imposed a four-year prison term, concurrent with the sentence for count seventeen; and the judge merged the second conviction for possession of a weapon for an unlawful purpose (count nineteen) with count sixteen. The court also imposed appropriate fines and penalties.

On appeal, defendant raises the following arguments:

POINT I - THE CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SEVER THE INDICTMENT.

POINT II - THE CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL.

POINT III - THE CONVICTION MUST BE REVERSED SINCE DEFENDANT WAS DENIED A FAIR TRIAL AS HE WAS SEEN BY A JUROR WHILE SHACKLED.

POINT IV - THE CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT V - THE CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT ALLOWED ADMISSION OF EXPERT TESTIMONY WITHOUT THE REQUISITE DISCOVERY.

POINT VI - THE SENTENCE SHOULD BE REDUCED OR VACATED AND THIS MATTER SHOULD BE REMANDED FOR RESENTENCING.

In light of the record and controlling law, we find defendant's arguments to be without merit and affirm.

I

Defendant was convicted for his part in a crime spree that began on November 19, 2002. At approximately 10:30 p.m. that evening, Vitor Baptista, a bartender at a restaurant on Elm Road in Newark, was walking to his car after work when a red two-door car pulled alongside him. The driver of the vehicle signaled him with his headlights, and said something that he could not hear. When he approached the driver's side window, the driver, who Baptista later identified as defendant, pointed a handgun at his chest, and demanded that he give him his money. After he gave defendant approximately $200, the car sped away. Baptista reported seeing two men in the car; although the car windows were tinted, he was able to identify defendant from a photographic display.

At approximately 10:40 p.m. that same evening, Ben Allen, Angel Mota, and Javier Colon were walking in the area of Garside and Second Avenues in Newark. Allen and Colon were walking together, while Mota was walking about thirty feet ahead of them. According to Allen, a man, who he later identified as defendant, approached the men from behind and, with gun in hand, demanded that they give him their coats. As Allen ran, he heard a shot, looked back, and saw Colon on the ground. He ran back to attend to Colon, and saw the man who had approached them enter the passenger-side door of a red, four-door car with a spoiler on the rear. He described the assailant as an African-American male, with a thin, athletic build, between five feet, eight inches and six feet tall. Allen later identified defendant's photograph from a photographic display. Colon died from a gunshot wound to the chest; the shot was fired from a distance of about twelve to eighteen inches.

Mota corroborated much of Allen's testimony. He saw the shooter with a silver handgun, and saw him get into a "darker red" car after the incident. Mota described the shooter as a thin man, slightly taller than five feet, eight inches, with a light-brown complexion. Although Mota conceded that he did not get a very good look at the suspect, he selected defendant's photograph from a display because his physical features most closely resembled those of the person he remembered. Mota admitted, however, that he, Allen, and Colon had been drinking and smoking marijuana before the incident, and that he was "kind of tipsy."

Roughly two hours later, at approximately 12:30 a.m. on November 20, Xavier Chavez was walking on North Sixth Street in Newark, when he observed a two-door, red sedan parked a few houses in front of him. Two heavily-clothed men got out of the car and walked towards him. With guns in their hands, the men began "stripping [Chavez] of [his] clothes." Chavez struggled with them, and ran away. As he ran, the men began shooting at him, but he was not hit. He was able to hide, and the men drove away.

Chavez testified that both men were wearing bandanas on their faces, but he was able to take the bandana off of one man during the struggle. Although he initially told the police that he would not be able to positively identify the man whose face he saw, he later picked defendant's picture from a display.

A few days later, at approximately 2:30 a.m. on November 23, 2002, Ricardo Pacheco, Paul Abreu, and Laura Gonzalez had just parked near Abreu's house on Pulaski Street after having returned from the Guitar Bar in Newark. As they walked to Abreu's house, they were approached from behind by two men who demanded their money. Pacheco testified that the two men took approximately $130 from him, and took Abreu's and Gonzalez's cell phones.

During the incident, an unidentified person in a white Lincoln Town Car pulled up and asked what was happening. When that occurred, the two men ran to their vehicle, which Pacheco described as a red four-door car, and drove away; the Lincoln Town Car followed it. As the cars left, Pacheco recalled hearing four gunshots. The driver of the Lincoln Town Car has not been identified.

At the police station, Pacheco identified defendant's picture. He also described defendant's car.

Gonzalez corroborated much of Pacheco's testimony. She also saw the men leave in a four-door, red car. She was never shown any photographs, and she was unable to identify either of the men.

On November 20, 2002, Newark Detective Michael Palermo issued a bulletin for the police to look for red cars like those that had been described in the incidents. On November 25, Newark Police Officer Julio Paredes located a red Chevrolet Beretta and a red Chevrolet Lumina in the street near a police mini-precinct in Newark. The Lumina had what appeared to be a bullet hole in the rear spoiler. Both cars were towed to the Essex County Crime Scene Unit for inspection. Michael Parente, a long-time friend of defendant, told Detective Palermo that he had seen defendant in the Lumina before, but he would not say definitively whether the Lumina belonged to defendant.

Peter Gozsa, a Crime Scene Investigator with the Essex County Prosecutor's Office, examined both the Beretta and Lumina for latent fingerprints. Although he recovered no fingerprints from the Beretta, he recovered four fingerprints from the Lumina, one of which belonged to defendant.

Gozsa also took photographs of the cars. In one photograph, he placed a rod through a bullet hole found in the rear spoiler of the Lumina, to demonstrate the path of the bullet. He testified that it appeared that the bullet entered the top of the spoiler and exited out of the bottom. The trial court judge issued a cautionary instruction to the jury explaining that Gozsa was only an expert on fingerprints, and was merely giving lay testimony regarding the bullet's trajectory.

The police also recovered several other items of evidence from the crime scenes. A police officer dispatched to Garside Avenue, where the incident involving Allen, Mota, and Colon had occurred, recovered a nine millimeter shell casing. Another officer dispatched to Garside Avenue recovered a projectile. The officer who went to the crime scene on North Sixth Street, where Chavez was robbed, recovered a spent nine millimeter casing. On Pulaski Street, where Pacheco, Abreu, and Gonzalez were robbed, an officer recovered spent casings and projectiles. The Newark Police Department ballistics laboratory tested the casings and projectiles found at the crime scenes and determined that they were discharged from the same firearm.

II

Defendant's first argument is that the trial court's failure to sever the indictment deprived him of a fair trial. The State responds that the joinder of all the charges was appropriate given the facts and circumstances of the case. We agree with the State.

Whether to sever an indictment is within the discretion of the trial court. State v. Chenique-Puey, 145 N.J. 334, 341 (1996). Absent an abuse of discretion, an appellate court should defer to the trial court's decision. Ibid.

Joinder of offenses is governed by Rule 3:7-6, which states:

Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.

Rule 3:15-2(b) states:

If for any other reason it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.

In general, the joinder of offenses in a single trial is only appropriate if it does not result in undue prejudice to the defendant. State v. Urcinoli, 321 N.J. Super. 519, 542 (App. Div.), certif. denied, 162 N.J. 132 (1999). When determining whether joinder will result in undue prejudice, the "critical inquiry is whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." State v. Pitts, 116 N.J. 580, 601-02 (1989). "If the evidence would be admissible at both trials, then the trial court may consolidate the charges because 'a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.'" Chenique-Puey, supra, 145 N.J. at 341 (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983)).

N.J.R.E. 404(b) states:

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.

Our Supreme Court has established a four-part test to determine the admissibility of evidence under N.J.R.E. 404(b):

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.

[State v. Cofield, 127 N.J. 328, 338 (1992) (internal citation omitted).]

On appeal, our review of a trial court's decision to admit other crime evidence is relatively narrow. State v. Marrero, 148 N.J. 469, 483 (1997). "Only where there is a clear error of judgment should the trial court's conclusion with respect to that balancing test he disturbed." Ibid. (internal quotations omitted).

Here, the trial court denied defendant's motion to sever the charges in the indictment, finding:

[T]he various crimes are linked by a common method of operation, proximity in time and place, and use of a red vehicle with tinted windows and a silver colored handgun. Ballistics evidence links at least three of the offenses and the vehicle identifications concern vehicles which were either owned by defendant or to which defendant had access. All of the offenses, further, are linked to the conspiracy charge set forth in the first count of the indictment.

The trial judge also indicated that he would address the issue of multiple offenses in a limiting instruction to the jury.

In conducting the Cofield balancing test, the trial court first found that evidence of all of the crimes was relevant to the issue of the perpetrator's identity. In State v. Long, 119 N.J. 439 (1990), our Supreme Court considered a case similar to the one at hand. There, the defendant was charged with committing two murders on the same day, in two different places and at two different times. Id. at 451. The suspect in both murders was identified as wearing a red baseball jacket, and carrying a silver revolver. Ibid. Ballistics tests proved that the same gun was used in both murders, and there was overwhelming evidence that the defendant had access to such a gun. Ibid.

Upholding the trial court's refusal to sever the offenses, the Court found that evidence of the first crime would be relevant to establishing the identity of the assailant in the second crime. Id. at 475. The Court observed, "if the same gun was used in the [second] shooting by a man in a red jacket, the evidence is plainly relevant." Ibid.

Here, the descriptions of the vehicle and the gun were very similar, if not nearly identical in each incident. Victims from each incident identified defendant from a photograph as the assailant. Ballistics tests linked the three crime scenes where gunshots were reported. As in Long, "the evidence is plainly relevant." See ibid.

Next, the trial court determined that the offenses were similar in kind and reasonably close in time. That finding was supported by the record and the case law. For example, in State v. Hardison, 204 N.J. Super. 1 (App. Div. 1983), aff'd, 99 N.J. 379 (1985), the defendant was charged, along with a co-conspirator, with committing two separate acts of armed robbery in two separate towns within approximately one hour of each other. Id. at 3-5. At both crime scenes, the assailants were accused of robbing the victims at gunpoint and fleeing in a red and white Cadillac. Id. at 4-5. We concluded "that the record includes evidence of a 'common scheme or plan' rather than separate and unrelated events. Thus, the offenses could properly be joined for trial". Id. at 10. We further concluded that both robberies could be considered as part of the conspiracy charge. Ibid.

Here, the robberies took place on the streets of Newark, late at night. The assailants approached the victims in a red vehicle with tinted windows. In each robbery, the assailant used a silver handgun, and demanded money, clothes, and/or personal belongings. The incidents included gunfire, and were connected through ballistics tests. Three of the four incidents took place in the course of one evening, while the fourth took place three days later. Like in Hardison, supra, the trial court found that these common features of the crimes satisfied the joinder requirements. Also like in Hardison, defendant was charged with conspiracy, which further supported the trial court's decision to try these interrelated offenses together.

The third criterion of the Cofield test is that the evidence must be clear and convincing. Although the trial judge did not explicitly address this prong of the test, he implicitly found that the evidence of the other crimes was clear and convincing. And, based on our independent review of the record, we conclude that the evidence of defendant's involvement in all of the incidents meets this test. Though he was acquitted of some of the charges, the acquittals were based on the reasonable doubt standard. That does not detract from the clear and convincing evidence of the other crimes that we have discussed. That evidence clearly and convincingly supported joinder of the charges against defendant.

Fourth, the trial court found that the probative value of the evidence would not be outweighed by potential prejudice to defendant. See N.J.R.E. 403. As discussed, the trial court found the victims' similar descriptions of the vehicle and gun; their selection of defendant's photograph from a display; the similar manner of the robberies; and the relatively short span of time between the robberies to be highly probative. He held that any potential prejudice would "be addressed by clear instructions to the jury." Those instructions were given.

Although charges of murder may prejudice a jury when it is considering charges of robbery, the trial court thoroughly considered the issue and we find no fault with its decision. In his instructions, the judge clearly informed the jury of its responsibility to consider each charge against defendant separately. He said:

[E]ach charge against the defendant must be considered separately and you cannot conclude that if you find the defendant is guilty of one charge, he must therefore be guilty of others as well. Your finding that the defendant is guilty or not guilty of each charge must be separately made for each charge on the evidence if any you find to be relevant.

Defendant further contends that the jury's verdict, convicting him of multiple counts of robbery and weapons possession charges, but acquitting him of murder, felony murder, and conspiracy, illustrates the jury's confusion. We disagree. On the contrary, the result illustrates that the jury was able to distinguish among the various charges.

III

Next, defendant argues that the State failed to present evidence regarding the conspiracy charge. We disagree.

When evaluating the sufficiency of evidence, a court applies the following test:

[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967).]

Here, applying that test to the State's proofs on the charge of conspiracy, defendant's challenge fails. Conspiracy is defined in N.J.S.A. 2C:5-2, which states:

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

 
(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

 
(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

The conspiracy does not have to be formal or expressed. State v. Kamienski, 254 N.J. Super. 75, 94 (App. Div.), certif. denied, 130 N.J. 18 (1992).

The trial court here found that the State presented sufficient evidence to present the charge of conspiracy to the jury:

Here . . . there is evidence of a series of robberies that occurred within a relatively short span of time, occurred in the same manner, involved at least two individuals. There [was] differing testimony from some of the victims, but by and large, . . . there was testimony identifying the defendant as participating in the robberies and I think a jury could fairly conclude that if these robberies, and other crimes, were to have occurred in the same area, within the same time frame and utilizing the same method of operation, the fair inference is there was an agreement among the participants to perpetrate a robbery and that is . . . the core and the nub of the charge of conspiracy and the evidence . . . fairly read by a jury could support that inference.

The judge was correct. Victims of the crimes reported more than one person being involved, either as a second robber or the driver of the get-away vehicle. Given that the incidents all had common elements, it could reasonably be inferred that the assailants conspired to commit the crimes. Accordingly, the trial court did not abuse its discretion in denying defendant's motion for acquittal and for a mistrial with regard to the conspiracy charge.

IV

Defendant next argues that his conviction should be reversed because a juror saw him in the hallway of the courthouse in shackles. He contends that the trial court erred by refusing to dismiss the juror. We disagree.

A defendant in a criminal trial has a constitutional right to be tried by an impartial jury. State v. Williams, 93 N.J. 39, 61 (1983). To maintain the jury's impartiality, a defendant has the right to be free from restraints and shackles in the jury's presence. State v. Smith, 346 N.J. Super. 233, 238 (App. Div. 2002). Though under limited circumstances a court may permit a defendant to be shackled in the presence of a jury, when that occurs, a cautionary instruction must be given to the jury that it should not consider the presence of restraints in determining the defendant's guilt or innocence. State v. Damon, 286 N.J. Super. 492, 499 (App. Div. 1996) (court reaffirmed procedures required to determine when shackles are necessary).

Here, defendant claims that on January 25, 2005, at the end of a trial day, a juror saw him being escorted in shackles to the prisoners' elevator. The court officer informed the judge that the juror had her head down at the time, and that it would have been very difficult for the juror to see him because defendant was flanked on both sides by officers. However, defendant alleged that he looked in her direction and saw her face. In response to this claim, the judge conducted a voir dire of the juror to determine if she saw defendant in shackles.

The juror explained that after the trial proceedings were concluded for the day, she was waiting for an elevator when she "saw some people going down a hallway," but she "didn't know where they were going." When asked whether the group of people included defendant, she responded that "it must have, probably"; but she was not certain because she was not paying attention. The trial judge then excused her and ordered her not to discuss this line of questioning with the other jurors.

Although defense counsel requested that the trial judge dismiss the juror from the case, he refused to do so, stating:

I'm not going to excuse Juror Number Three at this point. She indicated what she indicated very clearly on the record. She indicated that she didn't think twice about it, she didn't take particular note of the people going across the hall, wasn't even sure that [defendant] was in there and couldn't even think of anything in particular to describe when I asked her if she noticed anything in particular about the people going across the hall.

Given the circumstances, the judge's decision not to dismiss the juror was not an abuse of discretion. In State v. Sykes, 93 N.J. Super. 90 (App. Div. 1966), we considered this issue in the context of a similar fact pattern. There the defendant was being returned to the courtroom in restraints after the lunch recess, while the jury was outside the courtroom waiting for the trial to resume. Id. at 91. When defense counsel informed the trial judge that the jury likely saw the defendant in restraints, the judge granted defense counsel's request to allow the defendant to testify that he was in handcuffs because he pleaded guilty to a lesser charge. Id. at 92-93. The judge gave the jury a cautionary instruction not to consider the defendant's restraints during its deliberations. Id. at 93.

In affirming the trial court's actions, we distinguished that case, where the defendant was inadvertently seen by the jurors while restrained for safety purposes outside of the courtroom, from State v. Roberts, 86 N.J. Super. 159 (App. Div. 1965), in which the defendant was ordered to stand trial in shackles. Sykes, supra, 93 N.J. Super. at 94. We held that because the defendant was not manacled during the trial, he was required to show what prejudice resulted from his inadvertently being seen by the jury while handcuffed. Ibid. We concluded that the defendant had not shown any prejudice. Ibid.

Here, defendant was allegedly seen in shackles outside of the courtroom while being transported. He did not stand trial in shackles. Defendant has not demonstrated that he was prejudiced by the incident. The trial court reasonably considered the answers of the juror and the officer's description of the incident, and determined that the juror did not even see defendant outside of the courtroom. The record supports that conclusion.

V

Next, we turn to defendant's argument that the trial court erred by denying his motion for a new trial based on the improper joinder of unrelated crimes. That argument too is without merit.

In denying defendant's motion for a new trial, the trial court noted that the jury was specifically instructed to consider each charge separately. The judge concluded that the jury clearly understood the instructions, and was able to weigh the evidence and come to a decision on each charge. The court stressed that the jury did not convict defendant of the robbery of Chavez or the murder of Colon, which demonstrated a lack of undue prejudice.

The trial judge's reasoning was well-grounded. The jury did not convict defendant on all the charges against him; it acquitted him on murder charges and multiple counts of robbery and assault. Although defendant argues that this verdict illustrates the jury's confusion, we agree with the trial court that the verdict, in fact, illustrates the jury's ability to consider each charge separately.

Not every inconsistency in a jury's verdict rises to the level of a manifest denial of justice. "[A] jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted." State v. Banko, 182 N.J. 44, 46 (2004). Here, there was a sufficient evidential basis for each conviction, consisting of the victims' testimony, photograph identifications of defendant, identifications of the vehicle, and ballistics and fingerprint evidence. The jury's decision to acquit defendant on the remaining charges does not demonstrate that it was confused about the charges on which it did convict defendant.

VI

The next issue is whether the trial court erred by allowing Detective Gozsa to testify regarding the trajectory of the bullet hole in the vehicle. The State provided no expert report regarding Gozsa's testimony, and defendant claims that he was prejudiced because the vehicle had been destroyed by the time of trial. The State responds that there was no discovery violation because Gosza did not testify as an expert on bullet hole trajectories.

A defendant is entitled to know the details of the State's case against him within a reasonable time in order to prepare a proper defense. See R. 3:13-3. The State must provide the defendant with the

names and addresses of each person whom the prosecutor expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

[R. 3:13-3(c)(9).]

Both parties have a continuing duty to disclose discovery information as it becomes available. R. 3:13-3(g).

N.J.R.E. 701 allows for opinion testimony of lay witnesses:

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.

For the testimony to be rationally based on the perception of the lay witness, the witness "must have actual knowledge, acquired through his or her senses, of the matter to which he or she testifies." State v. Labrutto, 114 N.J. 187, 197 (1989) (police officer investigating traffic accident can give opinion about the point of impact); see also State v. Haskins, 131 N.J. 643, 649 (1993) (lay witnesses in accident cases can testify as to their estimation of the distance of a car from an intersection).

Here, the State called Gozsa to testify as an expert as to the fingerprints found on the Chevrolet Lumina. While he was testifying regarding the fingerprints, the prosecutor showed him a photograph of the vehicle, which depicted a rod tracking the trajectory of a bullet hole in the car's rear spoiler. When the prosecutor began to question Gozsa about the rod in the bullet hole, defense counsel objected, arguing that the photograph should not be entered into evidence because the prosecutor did not inform the defense that Gozsa would testify as an expert as to the bullet hole, and he did not submit an expert report.

In response to the objection, the trial court conducted a hearing out of the jury's presence. Gozsa testified that while inspecting vehicles with bullet holes, he routinely used a rod to determine the trajectory of the bullet. He informed the court that, from the marks on the car and the bullet hole, it appeared that a bullet ricocheted off of the roof of the car and entered the top of the rear spoiler and exited from the bottom of the spoiler. He formed his conclusion about the direction of the bullet because the hole on the top of the spoiler was very neat, indicating a bullet entrance, and the hole in the bottom of the spoiler consisted of protruding fiberglass, indicating a bullet exit. On cross-examination, Gozsa testified that he could say "with a degree of scientific certainty" that the bullet was fired from outside the vehicle. After questioning Gozsa, defense counsel withdrew his objection to Gozsa's testimony and to the admission of the photograph.

Minutes later, defense counsel renewed his objection, based on the State's failure to submit an expert report regarding the testimony and its failure to previously notify defense counsel about the testimony. The prosecutor conceded that no report was provided, and that the vehicle no longer existed, and could therefore not be inspected by defendant. The prosecutor argued, however, that an expert was not required to explain the presence of a bullet hole and the direction of its entrance and exit. Further, he agreed that he would not seek to enter into evidence the photograph that contained the rod in the bullet hole.

The trial court ruled:

I am denying [defense counsel's application to bar all testimony regarding the bullet hole] because from my perspective it doesn't require a scientific basis to say that appears to be a bullet hole and it appears that it entered here and exited here just by virtue of the way the material is puffed out on the back of the spoiler, and this officer may not, as a preamble to his testimony, as to that being a bullet hole, explain that I have been down in the state police and I've had bullet hole examinations because then we imbue it with an aura of scientific expertise that is not there.

The following morning, the trial judge further explained his decision, holding that Gozsa would be allowed to give lay opinion regarding the bullet hole, pursuant to N.J.R.E. 701, but not testimony regarding the bullet's trajectory. He stated, "One of the reasons I'm persuaded to do this is that [Gozsa] had an opportunity to actually look at the car and that the photograph[] itself may not be the best reproduction of that, and we can't have the jury itself look at the vehicle."

The judge gave a cautionary instruction to the jury explaining that Gozsa was only qualified as an expert regarding fingerprints, and that any testimony he gave regarding the bullet hole was lay opinion:

Investigator Gozsa was qualified as an expert in fingerprint analysis, you will recall yesterday, and the opinion that that Mr. Gozsa just provided that the marking and damage on the spoiler as shown in that picture is a projectile strike mark also known as a bullet hole is not proffered by him as an expert. Rather, it is given by him as a layman, much as any other layman looking at that mark could conclude or not conclude that appears to be a bullet hole or appears to be something else, and so his testimony with regard to that is not proffered or given to you as an expert but rather it is as a lay person taking a look at the photograph, taking a look at the vehicle itself, which you are free to reach your own conclusions with respect to same.

We conclude that the trial court did not err by allowing Gozsa to testify. He did not testify as to any complex scientific issues, such as trajectory, because the trial court appropriately limited the scope of his testimony. He merely testified as to his perception of the bullet hole that he personally observed in the car. He inspected the vehicle while performing his duties, and testified as to the appearance of the bullet hole, and as to the direction he believed, as a layman, the bullet traveled. His testimony assisted the jury in determining the bullet hole's significance. Although there was the potential for confusion among the jurors about whether Gozsa was an expert in bullet holes, the trial judge's cautionary instruction was clear and sufficient to lessen the chance of confusion.

To the extent the admission of this testimony was error, it was harmless in light of the overwhelming testimony of defendant's guilt; the challenged evidence was not clearly capable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971).

VII

Finally, we address defendant's sentence. He argues that the trial court erred by imposing an unjustly harsh sentence. He also contends that the trial court erred by imposing consecutive sentences. We disagree and find no abuse of discretion by the trial court in the imposition of defendant's sentence.

An appellate court must assure that the sentencing guidelines were followed, and that the judge properly decided the aggravating and mitigating factors based on the evidence. State v. Roth, 95 N.J. 334, 364-65 (1984). We modify sentences only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 364. We do not substitute our own determination of what an appropriate sentence should be for that of the trial court. Id. at 365. The test is "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989).

Here, we find no abuse of discretion by the trial judge in imposing defendant's sentence. Consecutive sentences were properly imposed pursuant to the criteria established in 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); the judge properly weighed the aggravating and mitigating factors and correctly applied the legal principles in exercising his discretion.

 
Affirmed.

In the indictment, Baptista's first name is listed as "Victor." At trial, it was made clear that his name is "Vitor."

(continued)

(continued)

29

A-5392-04T4

June 1, 2007