STATE OF NEW JERSEY v. DONTE WILLIAMS

This case can also be found at 197 N.J. 477.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0729-06T40729-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONTE WILLIAMS,

Defendant-Appellant.

__________________________________

 

Submitted October 14, 2008 - Decided

 

Before Judges R. B. Coleman, Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-02-0028.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried as an adult after a juvenile waiver to the Law Division, defendant Donte Williams was convicted of aggravated manslaughter of Che Broadus ("Broadus"), N.J.S.A. 2C:11-4(a) (count one); attempted murder of Albert Windham ("Windham"), N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count two); second-degree aggravated assault of Windham, N.J.S.A. 2C:12-1(b)(1) (count three); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (count five); and knowing possession of a defaced weapon, N.J.S.A. 2C:39-9(e). With respect to count one, the jury specifically acquitted defendant of Broadus's murder, instead finding him guilty of aggravated manslaughter as a lesser-included offense. The trial court sentenced defendant, after appropriate mergers, to a twenty-five-year term on count one and a twenty-year consecutive term on count two, plus various fines and penalties.

On appeal, defendant principally contends that he is entitled to a new trial on count one because the court erred in failing to correct its charge to the jury explaining the pertinent lesser included offenses of murder, despite defense counsel's timely attempt to have the charge corrected to conform with the model criminal charges. Defendant argues that, as a consequence of the misstatements in the charge, the jury was faced with an improper "all or nothing" choice between convicting him of aggravated manslaughter or acquitting him of all lesser-included offenses arising from Broadus's death.

We agree with defendant's contentions as to this critical flaw in the jury instructions, and remand for a new trial as to the charges in count one respecting the Broadus homicide. However, we reject defendant's contentions relating to the other offenses for which he was found guilty. We also reject defendant's challenges to the severity of his sentence, except for the uncontested need to correct certain duplicative fines and penalties.

I.

This appeal arises out of the shooting of two young men in an automobile, Broadus and Windham, in the early morning hours outside of a dance club. Broadus died from his gunshot wounds. Windham was injured in his left hand, but survived. The State's proofs at trial depicted the following pertinent chronology of events.

On the night of August 28, 2004, Windham, Broadus, Antoine Walker ("Walker"), Antwan Johnson ("Johnson"), and several other friends went to Teen Night at Club Krome, a dance club in Sayreville. That same night, defendant also went to Club Krome, accompanied by Shawn Morris-Greene ("Morris-Greene") and Osbourne Mayers ("Mayers"). Defendant at the time was sixteen years old.

At some point inside the dance club that evening, Morris-Greene and Johnson bumped into each other, and engaged in a "stare off." Johnson, Windham, and Walker then walked over to defendant and Morris-Greene, and an argument ensued. During that confrontation, Windham and defendant got into what was described as a "gang-related" altercation, and Windham noticed a red bandana in defendant's hand. Morris-Greene then pulled out a pocket knife and told the others to "back off." The club's bouncers separated the two groups. Johnson told the bouncers that Morris-Greene had a knife. Consequently, Morris-Greene was ejected from the club. Johnson also left the premises early, but Broadus, Windham, and Walker remained at the club until it closed.

Shortly after the altercation with Johnson's group, defendant left the club with Lamar Danzey ("Danzey"). They met up with Morris-Greene, who had been waiting outside. The three young men left together in Danzey's car. Danzey then drove defendant and Morris-Greene to defendant's house in Rahway. While Danzey and Morris-Greene remained outside, defendant went into his house. He returned a few minutes later wearing a dark hooded sweatshirt, a blue basketball jersey, and a black bandana. After defendant placed these items in the trunk, the trio headed back to Club Krome.

When defendant, Danzey, and Morris-Greene arrived back at Club Krome, Danzey parked his car across the street behind a restaurant. Danzey went inside the club, while defendant and Morris-Greene remained in Danzey's car.

Sometime between 12:30 a.m. and 1:00 a.m., the club closed. Danzey returned from the club to his car with Faith Taylor ("Taylor") and Jennifer Muriel ("Muriel"). Danzey testified that at this point, defendant instructed him to "wait for him." Consequently, Danzey, Taylor, Muriel and Morris-Greene all remained in Danzey's car. Danzey, Muriel and Morris-Greene testified that they then watched defendant walk toward Club Krome. All three of those witnesses stated that he was then wearing a blue jersey.

At about the same time, Broadus, Windham, and Anthony Stover ("Stover") walked out of the club and headed for Broadus's car. That vehicle pulled out of the club's parking lot, onto Old Spye Road, and stopped at a traffic light. Broadus was driving, Windham was in the front passenger seat, and Stover was in the rear passenger seat.

Suddenly, Windham heard gunshots coming from his right. Windham turned to his right and saw a male wearing a black hooded sweatshirt with the hood up and a bandana, standing about three to four feet from the passenger side window, shooting at Broadus's car. Several other club patrons and a bouncer similarly testified that the shooter was wearing a hooded sweatshirt and a bandana.

About three or four shots were fired. Broadus was struck in the chest, and died shortly thereafter as a result of his wounds. Windham was shot in the left hand, but eventually recovered.

Following the gunshots, defendant was observed running back towards Danzey's car, which was still parked across the street from the club. Danzey then drove defendant and Morris-Greene to Frank N' Fries, a local restaurant. Morris-Greene testified that he saw defendant place the rolled-up sweatshirt and jersey in a plastic bag and leave it near a garbage can at the restaurant. Morris-Greene further testified that he saw Mayers at Frank N' Fries, but that he did not tell Mayers at that time anything about the shootings.

Four days later on September 1, defendant was arrested at his home. That same day, defendant's bedroom was searched, pursuant to a search warrant. During the course of that search, the police found a fully-loaded .380 caliber semi-automatic handgun, wrapped in a blue bandana under the defendant's bed with one round in the chamber. The gun was defaced. Additionally, the police found in defendant's bedroom a spent shell casing, two bandanas, a blue basketball jersey, a black t-shirt with a white t-shirt underneath it, and a dark hooded sweatshirt. A forensic ballistics expert who testified for the prosecution determined that the bullet removed from Broadus's chest and the bullets removed from his car had been shot from the same gun that the police found in defendant's bedroom.

Defendant did not testify at trial. He did not present any witnesses, although he had unsuccessfully attempted to subpoena Mayers, who had given a tape-recorded statement to the police. In his summation, defense counsel contended that the State's witnesses had incorrectly identified defendant as the shooter. He also characterized the shooting of Broadus as only a "reckless" act, rather than as a deliberate attempt to take his life.

On its second day of deliberations, the jury convicted defendant of offenses relating to all six remaining counts of the indictment. With respect to count one, the jury found defendant not guilty of the murder of Broadus, but instead convicted him of aggravated manslaughter as a lesser-included offense. As we have already noted, defendant was sentenced to an aggregate term of forty-five years, plus various monetary sanctions.

On appeal, defendant raises the following points for our consideration:

POINT I

THE JURY INSTRUCTIONS OF THE DISTINCTION BETWEEN RECKLESS MANSLAUGHTER AND AGGRAVATED MANSLAUGHTER TWICE IMPROPERLY TOLD THE JURORS THAT IF THEY "FIND THAT [DEFENDANT'S] CONDUCT RESULTED IN ONLY A POSSIBIITY OF DEATH THEN YOU MUST ACQUIT HIM OF THE HOMICIDE CHARGE," RATHER THAN TELLING THEM TO ACQUIT OF AGGRAVATED MANSLAUGHTER AND CONSIDER A VERDICT FOR RECKLESS MANSLAUGHTER. (Raised Below By [The] State) [(Emphasis in original).]

POINT II

THE TRIAL JUDGE VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO COMPULSORY PROCESS WHEN HE REFUSED TO COMPEL THE IN-COURT APPEARANCE OF A WITNESS THAT THE DEFENSE HAD SUBPOENAED.

POINT III

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE AND, IN THE CASE OF VARIOUS PENALTIES, ILLEGAL.

We now consider each of these contentions.

II.

During the charge conference, the court and all counsel agreed that, with respect to the killing of Broadus, the jury should be charged with both aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), as potential lesser-included crimes to murder, N.J.S.A. 2C:11-3. Murder is a first-degree crime. N.J.S.A. 2C:11-3(b). Aggravated manslaughter is also a first-degree crime. N.J.S.A. 2C:11-4(c). Reckless manslaughter, by contrast, is a second-degree crime. N.J.S.A. 2C:11-4(c).

In the present context, which does not involve a homicide committed while eluding a police officer, see N.J.S.A. 2C:11-4(a)(2), nor a murder committed in the heat of passion, see N.J.S.A. 2C:11-4(b)(2), the essential substantive difference between aggravated manslaughter and reckless manslaughter is that in the former crime, "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life[.]" N.J.S.A. 2C:11-4(a)(1). By contrast, reckless manslaughter has no such "extreme indifference" requirement. See N.J.S.A. 2C:11-4(b)(1). See also State v. Curtis, 195 N.J. Super. 354, 366-67 (App. Div.), certif. denied, 99 N.J. 212 (1984). This distinction has been further developed to signify that aggravated manslaughter connotes a heightened degree of recklessness under which the victim's death is "a probability as opposed to the mere possibility that death would occur." State v. Bakka, 176 N.J. 533, 550 (2003); see also State v. Totter, 271 N.J. Super. 214, 227 (App. Div.), certif. denied, 137 N.J. 313 (1994).

This probability/possibility differentiation is reflected in the pertinent portion of the model jury instruction, which reads:

Another element that the State must prove beyond a reasonable doubt is that defendant acted under circumstances manifesting extreme indifference to human life. The phrase "under circumstances manifesting extreme indifference to human life" does not focus on defendant's state of mind, but rather on the circumstances under which you find (he/she) acted. If, in light of all the evidence, you find that defendant's conduct resulted in a probability as opposed to a mere possibility of death, then you may find that he/she acted under circumstances manifesting extreme indifference to human life. On the other hand, if you find that (his/her) conduct resulted in only a possibility of death, then you must acquit (him/her) of aggravated manslaughter and consider the offense of reckless manslaughter, which I will explain to you shortly.

Model Jury Charge (Criminal), Murder, Passion/Provocation and Aggravated/Reckless Manslaughter (emphasis added); see also State v. Breakiron, 108 N.J. 591, 605 (1987); State v. Saunders, 277 N.J. Super. 322, 326 (App. Div. 1994); Curtis, supra, 195 N.J. Super. at 364-65.

In the present case, the trial judge correctly explained to the jury the respective elements of murder, aggravated manslaughter, and reckless manslaughter. However, the judge twice misstated, apparently inadvertently, the interrelationship between the lesser-included offenses of aggravated manslaughter and reckless manslaughter. Specifically, the judge first instructed the jury that:

As to the homicide charges, the term "circumstances manifesting extreme indifference to human life" means it's another element the State must prove beyond a reasonable doubt is the defendant acted under circumstances manifesting extreme indifference to human life. The phrase "under circumstances manifesting extreme indifference to human life" does not focus on defendant's state of mind but rather on the circumstances under which you found that he acted. If, in light of all the evidence, you find that the defendant's conduct resulted in a probability as opposed to a mere possibility of death then you must find that he acted under circumstances manifesting extreme indifference to human life. On the other hand, if you find that his conduct resulted in only a possibility

of death then you must acquit him of the homicide charge.

[(Emphasis added).]

This charge was misleading in its direction that the jury "must acquit" defendant of "the homicide charge," rather than "the aggravated manslaughter charge," if it found that his conduct generated only the possibility, and not the probability, of death.

The judge repeated this mistake later on in reciting the aggravated manslaughter instruction:

Another element the State must prove beyond a reasonable doubt is that defendant acted under circumstances manifesting extreme indifference to human life. The phrase "manifesting extreme indifference to human life" does not focus on defendant's state of mind, but rather on circumstances under which you find that he acted. If, in light of all the evidence, you find the defendant's conduct resulted in the probability as opposed to a mere possibility of death, then you may find that he acted under circumstances manifesting extreme indifference to human life. If, on the other hand, you find that his conduct resulted in only a possibility of death then you must acquit him of the homicide charge.

[(Emphasis added).]

After the entire jury charge was issued, the judge called counsel to sidebar to entertain exceptions. During the course of that sidebar, one of the issues raised was the court's deviation from the model instruction on the "probability of death/possibility of death" distinction. One of the two assistant prosecutors trying the case recognized this problem. She expressed concern that the court's instruction advising the jury that it must acquit defendant "of the homicide charges" in their entirety, rather than just the aggravated manslaughter charge, if the probability of death was not sufficiently proven, was too "general" and could misguide the jury.

Before that concern could be explored in more detail, the State's co-counsel spoke up and mistakenly asserted that the court's instruction had tracked the language of the model charge. This belief was echoed by the judge, who assured all counsel that he had "cut and paste[d]" this aspect of the model charge, and that it was "verbatim" of the model language.

The colloquy on this critical subject reads as follows:

[ASSISTANT PROSECUTOR] ESTREMERA: I'm not sure if [the problem with the instructions arose in] the definitions. I didn't bring them with me. When you speak [about] the lesser included charges of murder.

THE COURT: Under definitions?

[ASSISTANT PROSECUTOR] ESTREMERA: I think it's in the actual charge. These are not numbered but when you're describing circumstances manifesting extreme indifference to the value of human life and you make reference this only applies to aggravated manslaughter and reckless manslaughter, you talk about probability and possibility and you state on the other hand if you find that his conduct resulted only in possibility of death then you must acquit him of the homicide charges. I think that's so general that it might--

[ASSISTANT PROSECUTOR] LaMOUNTAIN: Murder, reckless are all out of the model charge.

THE COURT: That comes out of the model. That's verbatim. All I did was cut and paste.

[ASSISTANT PROSECUTOR] ESTREMERA: I think that's it, judge.

[(Emphasis added).]

Defense counsel did not comment at that point, having heard the mistaken assurances by the judge and by one of his adversaries that the court's instruction had simply tracked the model charge.

The entire charge, including the two erroneous "you must acquit" passages cited above, was provided in written form to the jurors during their deliberations. The State does not contend that the written version of the charge on this subject differed from the judge's spoken version.

Defendant urges that these flaws in the charge were material, and that they would have led the jurors to believe, erroneously, that if the elements of murder were lacking, they had to either convict defendant of aggravated manslaughter of Broadus, or acquit him of that particular killing. Such an "all or nothing" construct is disfavored.

A key purpose of charging lesser-included offenses is to guard against the prospect that "a jury reluctant to acquit defendant might compromise on a verdict of guilt on the greater offense." State v. Sloane, 111 N.J. 293, 299 (1988). "Where one of the elements of the offense remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 1997-98, 36 L. Ed. 2d 844, 850 (1973) (emphasis in original). See also State v. Jenkins, 178 N.J. 347 (2004) (sustaining reversal of murder conviction because of the trial court's failure to instruct the jury properly on lesser included offenses, thereby leaving the jury with an "all or nothing" situation).

For these sound reasons, a lesser-included offense must be charged, even if not specifically requested by trial counsel, where it is "clearly indicated" by the proofs. Jenkins, supra, 178 N.J. at 361; State v. Choice, 98 N.J. 295, 299 (1985). "[W]here the facts on record would justify a conviction on a certain charge, the people of this State are entitled to have that charge rendered to the jury[.]" State v. Garron, 177 N.J. 147, 180 (2003) (quoting State v. Powell, 84 N.J. 305, 319 (1980), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)). "[N]o one's strategy, or assumed (even real) advantage can take precedence over that public interest." Ibid.

Here, the State does not dispute that a proper instruction to the jury concerning reckless manslaughter as to the Broadus shooting was warranted, given the debatable features of the shooter's actual state of mind. Indeed, the record strongly suggests that the shooter's main target was not Broadus, who was driving the vehicle, but Windham, with whom defendant had argued inside the dance club.

"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial court has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004). See also State v. Fair, 45 N.J. 77, 93 (1965) (finding that "in the factual context of th[e] case that the trial court's failure to charge the jury on [a specific] issue sua sponte was nothing less than plain error requiring reversal").

The State contends that we should evaluate the trial judge's erroneous instructions here under a "plain error" standard of review, Rule 2:10-1, since defendant's trial counsel did not specifically object to those instructions. The State further posits that defense counsel deliberately kept silent when the issue was raised by one of the assistant prosecutors, hoping that the jury would find the proofs lacking of a "probability" of death from Broadus's shooting and thereby reach an acquittal verdict on count one.

We have considerable doubts that the "plain error" standard appropriately applies here, given that the judge represented to counsel that he had duly "cut and pasted" the actual charge from the model charge, and the further assurances of co-counsel from the State echoing that mistaken assumption. It would have been reasonable for defense counsel to rely on those assurances of correctness by the judge and his adversary. We also do not presume, either way, the strategic thinking of defense counsel at the time. The State's present argument that the inadvertent all-or-nothing aspect of the charge necessarily worked to defendant's advantage is belied by the reasoning of our Supreme Court in Sloane, supra, and Jenkins, supra, and the United States Supreme Court's observations in Keeble, supra.

Even assuming, for the sake of argument, that the "plain error" review standard applies here, we have an independent duty to assure that these defects in the charge were not material. It is settled law that "[e]rroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Where a jury charge was "inadequate to guide the jury in the course its deliberations should take," the conviction is to be reversed. Id. at 290. Moreover, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 395, 410 (1987), certif. denied, 156 N.J. 387 (1998)).

We are satisfied that the trial judge's unfortunate misstatements to the jury concerning the interrelationship between the aggravated manslaughter charge and the reckless manslaughter charge were material and not harmless. Apart from the two cited misstatements, the judge also plainly erred in failing to tell the jury affirmatively that if it found that a reckless killing of Broadus was committed under circumstances only indicative of the mere possibility of his death, the appropriate verdict to consider was reckless manslaughter. A similar material omission was deemed to require a new trial in Saunders, supra, 277 N.J. Super. at 326-29. Moreover, the differences in penal consequences between aggravated manslaughter, a first-degree crime, and reckless manslaughter, a second-degree crime, are readily apparent. The error was compounded by the submission of the flawed written charge into the jury room.

In sum, the multiple errors in the court's instructions concerning the Broadus homicide require a new trial on that discrete portion (count one) of the indictment. That disposition does not, however, affect the integrity of the guilty verdicts on the remaining counts of the indictment.

III.

Defendant next argues that the trial judge violated his right to compulsory process in failing to compel the appearance and trial testimony of Mayers, upon whom defendant had served a subpoena duces tecum. We disagree.

After the State completed its case-in-chief, defendant's trial counsel informed the court that he had subpoenaed Mayers, in an effort to secure his testimony. Defense counsel told the court that he had not heard back from Mayers regarding the subpoena, that he had called Mayers several times, and that he still had no response from him. Counsel represented that Mayers, if he appeared, would testify that Morris-Greene had told him after the incident that defendant was not the shooter. Counsel further requested the trial court to assist him to compel Mayers's appearance.

The trial judge denied defense counsel's application to enforce the Mayers subpoena. The judge first noted that Mayers's proposed testimony would encompass hearsay, because it purportedly involved an out-of-court statement by Morris-Greene to Mayers. Additionally, the judge found that the proposed testimony was not particularly relevant, and that its probative value would be "far outweighed" by the prejudice involved in delaying the trial to locate Mayers. The judge observed that the purpose of this proposed testimony would be to contradict a statement made by Morris-Greene during his cross examination, in which Morris-Greene asserted that he "did not say anything one way or the other about whether the defendant was the shooter."

We recognize that under the Sixth Amendment, criminal defendants generally are entitled to compulsory process and to bring before the jury relevant evidence that might establish a defense. Taylor v. Illinois, 484 U.S. 400, 408-09, 108 S. Ct. 646, 653, 98 L. Ed. 2d 798, 810 (1988); State v. Garcia, 195 N.J. 192, 202 (2008). This right is not, however, absolute, and "'may in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'" Garcia, supra, 195 N.J. at 203 (quoting State v. Garron, 177 N.J. 147, 169 (2003)). Such legitimate interests include "the fair and efficient operation of our criminal justice system" and "the effective administration of a criminal trial." Ibid. Measured by these standards, we are satisfied that the trial judge did not deprive defendant of his Sixth Amendment rights when he declined to adjourn the trial and make a further attempt to have Mayers appear in court.

During the course of his testimony in the State's case, Morris-Greene asserted that he "didn't tell [Mayers] anything about the shooting." Defendant maintains that Mayers would have contradicted Morris-Greene on that discrete point, by claiming that Morris-Greene had, in fact, told him that defendant was not the shooter. Although this contradiction arguably would comprise an admissible prior inconsistent statement for impeachment purposes under N.J.R.E. 613 and substantively under N.J.R.E. 803(a)(1), the probative value of such extrinsic collateral proof, as the trial judge intimated, was not substantial. Morris-Greene never told the jury that he had witnessed the shooting. Nor did he testify as to any personal beliefs as to whether defendant was the shooter. Morris-Greene only observed defendant going to and coming from the area where the shooting took place. He had no personal knowledge of the shooter's identity. See N.J.R.E. 602 (requiring lay witnesses to testify from personal knowledge).

By comparison, several other witnesses for the State, including Windham and various other club patrons, observed the shooter first-hand and identified his clothing. In particular, Windham, the surviving victim, identified defendant in court as the person who shot into Broadus's car. The gun was recovered from defendant's residence, and defendant admitted afterwards to his girlfriend and others that he had remorse about killing Broadus rather than Windham.

Given these factors, we are satisfied that Mayers's testimony, even if it had been successfully procured, was at best collateral and lacked sufficient probative value to require the relief sought by defendant's trial counsel. There was no error in the judge's proceeding with the trial despite Mayers's failure to comply with the defendant's subpoena. Even if the judge's ruling were deemed to be in error, any such error was clearly harmless in light of the overwhelming proof that defendant was indeed the shooter. Defendant's arguments on this issue are accordingly rejected.

IV.

Lastly, we consider defendant's claims that his sentence was excessive and, with respect to the fines and penalties, illegal. Our analysis is affected, of course, by the vacature of the Broadus manslaughter conviction and the remand for a new trial on count one that we have ordered in Part II, supra. Upon stripping that conviction from the aggregate sentence, what remains is a twenty-year sentence on count two (attempted murder of Windham), with an 85% parole disqualifier under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7. Additionally, after appropriate mergers of counts three, four and six, the judge imposed a four-year concurrent term on count five for the unlawful possession of a weapon.

The judge imposed these sentences after weighing the pertinent aggravating factors, specifically factors (1) the nature and circumstances of the offense; (3) the risk of re-offense; (5) the likelihood of involvement in organized criminal activity; and (9) the need for deterrence. See N.J.S.A. 2C:44-1(a). Defendant does not contest the presence of each of these aggravating factors. Nonetheless, he maintains that the trial court acted unfairly in imposing the maximum allowable term of twenty years on the attempted murder, given his relative youth.

Having considered the events that preceded defendant firing his gun repeatedly at close range into the Broadus vehicle, including the gang-related confrontation inside the dance club, as well as defendant's preparatory conduct in going home to retrieve a gun and other clothing to mask his appearance before returning to the club, we are satisfied that the substantial prison terms imposed upon him were fully justified. The sentence, although it represents the maximum on the attempted murder conviction, was not manifestly excessive. State v. Roth, 95 N.J. 334, 363-64 (1984).

As conceded by the State, we necessarily remand the sentence to the Law Division for the limited purpose of vacating the duplicative fines and penalties payable to the Victims of Crime Compensation Board ("VCCB") and the Safe Neighborhood Services Fund ("SNSF") on merged counts three, four and six. See N.J.S.A. 2C:1-8(a)(1). The VCCB and SNSF impositions shall be adjusted accordingly in an amended judgment of conviction, which also shall vacate the conviction on count one, subject to a new trial on that count consistent with Part II of this opinion.

V.

For all of the above reasons, defendant's convictions on counts two, three, four, five and six are affirmed. His conviction on count one is vacated and a new trial on that count is ordered, with appropriate jury instructions. The trial court on remand shall also adjust the VCCB and SNFS penalties, as previously noted.

 

The red color of the bandana is a hue associated with the "Bloods" gang.

Danzey testified that defendant also was carrying a gun, although Morris-Greene testified to never seeing a gun.

Danzey testified that defendant had been wearing a dark hooded sweatshirt earlier that evening. Morris-Greene testified that as defendant was walking back toward the club, he was wearing a dark hooded sweatshirt underneath the blue jersey.

We discuss the Mayers subpoena in more detail in Part III of this opinion, infra.

Prior to the defendant's waiver to adult court, the Family Part had granted the State's motion to dismiss a stolen property count (count seven).

The first sentence of this excerpt refers in the plural to "the homicide charges," thereby subsuming both aggravated and reckless manslaughter as two forms of homicide.

In particular, we note that defendant does not contend that the misstatements in the jury instructions concerning the Broadus homicide affected the proper disposition of the charges relating to the attempted homicide of Windham.

We concur with defendant that the trial judge erroneously applied the federal hearsay exception for prior inconsistent statements, rather than the less-stringent state version of the exception, in his hearsay analysis. For reasons that we explain herein, this mistake was inconsequential.

(continued)

(continued)

25

A-0729-06T4

November 10, 2008