STATE OF NEW JERSEY v. DUTQUAN WILSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DUTQUAN WILSON, a/k/a DUTGUAN

WILSON, DUTOGUAN WILSON,

Defendant-Appellant.

_______________________________

October 18, 2016

Argued January 25, 2016 Decided

Before Judges Messano and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. 13-02-00610.

Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Keenan, of counsel and on the brief).

Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Shashoua, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

On March 13, 2013, a jury found defendant Dutquan Wilson guilty of two counts of second-degree aggravated assault- serious bodily injury against N.I. and Y.G.,1 N.J.S.A. 2C:12-1(b)(1); two counts of lesser-included third-degree aggravated assault with a deadly weapon against J.G. and Jo.G (collectively the children), N.J.S.A. 2C:12-1(b)(2); four counts of fourth-degree aggravated assault-firearm pointing against N.I., Y.G., and the children, N.J.S.A. 2C:12-1(b)(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).

On May 3, 2013, the trial judge sentenced defendant to a twelve-year extended term2 subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for second-degree aggravated against N.I.; an eight-year term subject to NERA for second-degree aggravated assault against Y.G.; and two four-year terms with two years of parole ineligibility for lesser-included third-degree aggravated assault against the children. These sentences were imposed to run consecutively. The judge also imposed a concurrent term of eight years with four years of parole ineligibility in accordance with the Graves Act, N.J.S.A. 2C:43-6(c), for second-degree unlawful possession of a weapon. The judge merged the four counts of fourth-degree aggravated assault-firearm pointing and the one count for second-degree possession of a weapon for an unlawful purpose with the convictions for two counts of second-degree aggravated assault and two counts of lesser-included third-degree aggravated assault. Thus, defendant was sentenced to an aggregate term of twenty-eight years, subject to NERA.

Defendant through counsel raises the following issues

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO THREE OF THE ATTEMPTED AGGRAVATED ASSAULT -SERIOUS BODILY INJURY CHARGES AND THREE OF THE FIREARM-POINTING CHARGES BECAUSE TRIAL TESTIMONY INDICATED THAT THE GUN WAS ONLY EVER POINTED, AND FIRED AT, ONE OF THE ALLEGED VICTIMS.

A. The State Failed to Present Evidence to Support Four Convictions for Attempted Aggravated Assault SBI, When The State's Witnesses Testified That [Defendant] Fired Only Two Shots into The Minivan.

B. The State Failed to Present Evidence to Warrant Four Convictions for Aggravated Assault Firearm Pointing When There Was No Testimony That Indicated [Defendant] Pointed a Firearm at Anyone Other Than [N.I.].

POINT II

THE TRIAL JUDGE'S SINGLE INSTRUCTION FOR FOUR INDIVIDUAL COUNTS OF ATTEMPTED AGGRAVATED ASSAULT WHEN THE DEFENDANT WAS ALLEGED TO HAVE ONLY FIRED TWO SHOTS, FAILED [TO] PROVIDE THE JURY WITH AN ADEQUATE ROADMAP TO APPLY THE LAW TO THE FACTS OF THIS CASE AND THEREFORE DEPRIVE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (not raised below).

POINT III

THE PROSECUTOR'S MULTIPLE INSTANCES OF MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (not raised below).

POINT IV

THE TRIAL JUDGE'S IMPOSITION OF AN AGGREGATE TWENTY-EIGHT-YEAR SENTENCE WITH ALMOST TWENTY-ONE YEARS OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE.

A. The Sentencing Judge Erred in Imposing Four Consecutive Sentences Based Solely on the Number of Victims.

B. The Sentencing Judge Abused Her Discretion in Imposing a Twelve-Year Extended NERA Term on Count One, Resulting in a Manifestly Excessive Sentence.

In addition, in a supplemental pro se brief, defendant raises the following argument

POINT I

THE OUT-OF-COURT IDENTIFICATION PROCEDURES USED BY THE INVESTIGATING DETECTIVES CONDUCTING THE PHOTO ARRAY LINE-UP VIOLATED THE DEFENDANT'S DUE PROCESS RIGHTS ACCORDING TO THE 14TH AMENDMENT OF THE UNITED STATES CONSTITUTION.

Having considered the record, arguments of counsel, and applicable law, the motion for acquittal should have been granted pertaining to the third-degree aggravated assault and fourth-degree aggravated assault-firearm pointing charges against the children. The State failed to prove beyond a reasonable doubt that defendant knowingly fired or pointed his gun at, or in the direction of, the children. We therefore reverse the convictions and the sentences imposed. We affirm all other convictions and the sentences imposed.

I.

On the afternoon of April 11, 2011, N.I. learned that his eight-year-old son, J.G., ran home following an after-school fight with schoolmates. J.G. told N.I. that a man, later identified as defendant, had directed some boys to "mess" with him. In turn, N.I. directed his daughter, Jo. G., and J.G., to get into the rear seat of the family minivan, and with Y.G., his girlfriend and mother of his children, in the front passenger seat, N.I. drove to locate defendant.

When he was approximately two blocks from his home, N.I. saw defendant. N.I. parked the vehicle and got out to talk to defendant. According to the testimony of N.I., Y.G., and J.G.,3 defendant then told a boy to get the "strap." Knowing that this meant a gun, N.I. stated that he "told everybody to get in the car and let's just leave." Apparently, N.I. misspoke because he also stated that his children never "got out the car," after he told them to stay in the car when he approached defendant. N.I. claimed that the children were "more like hanging out the car, [and] didn't get out the car." Y.G. testified that she was "out the car" when N.I. approached defendant, and never stated that the children got out of the car. Y.G. also stated that after defendant asked for his gun, "[w]e got in the car and we drove around the corner to [our] house to get our phones because we left everything at the house."

N.I. drove home and parked the car in front of the family's house with the driver's side next to the curb. He then noticed defendant "about 15 feet, 20 feet" away approaching the passenger side of the car from across the street with a handgun. As N.I. attempted to drive away, defendant fired a gun shot at the car's front bumper. N.I. testified that defendant "wasn't [at] the front of the car, he was on the side of the road and he shot the front of the car." Defendant then "ran up towards the [front passenger side] window" approaching "about five feet" away from where Y.G. was seated with the window down. N.I. recalled that, as he was swerving the car away, defendant "came right next to the [open] window [where Y.G. was seated] and he shot into the window." The gun shot went into the dashboard, hit the air conditioner controls, and landed by N.I.'s foot. N.I. then sped away and drove to the police station after he could not locate a police officer on the street.

According to Y.G., the children were in the backseat when defendant "pointed the gun at our car and he shot." She did not remember whether defendant pointed his gun at the car after the first shot. She did recall yelling at her children, to get down on the floor after hearing the second shot fire.

J.G. testified that he and his younger sister, Jo. G., were in the backseat. He stated that he never saw the gun in defendant's hand but after he heard the gun fire, "he was moving around" in the car "trying to not let [defendant] see [him]" because he "didn't want to be the one to get shot[.]"

At the end of the State's case, defendant moved for a judgment of acquittal on the four charges of second-degree aggravated assault on the basis that the State failed to prove defendant acted with purpose to cause serious bodily injury to the four victims. Defendant also sought acquittal of the four fourth-degree aggravated assault-firearm pointing charges contending that the State's witnesses gave contradicting testimony concerning his pointing of the gun and that no gun was found. Defendant argued that the State failed to prove purposeful conduct concerning the second-degree weapon charges.

The trial judge denied the motion. In summarizing the State's evidence, she recalled the three victims' testimony that, "defendant pointed a gun at [their] vehicle, firing two shots, one hitting the outside portion of the vehicle, [the other,] after the defendant came around to the passenger side [, was] fired into the vehicle." The judge reasoned that acquittal was not appropriate because "a rational trier of fact . . . can find the essential element[s] of the crime[s] beyond a reasonable doubt[.]"

Defendant did not testify nor present any witnesses. The jury rendered its guilty verdict as noted, and this appeal followed.

II.

We first address defendant's contention that the court erred in not granting his motion for acquittal. A motion for judgment of acquittal of a charged offense shall be granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1. We apply the same standard and review to the judge's decision de novo. See State v. Bunch, 180 N.J. 534, 548-49 (2004); see also Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 3:18-1 (2016). An appellate court must determine "whether, viewing the State's evidence in its entirety . . . 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 . . . beyond a reasonable doubt." State v. Wilder, 193 N.J. 398, 406 (2008) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).

With these principles in mind, we disagree with defendant's argument pertaining the charges involving Y.G. We do, however, find merit to defendant's argument that the charges related to the children should have been dismissed.

A person is guilty of second-degree aggravated assault if he "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]" N.J.S.A. 2C:12-1(b)(1); N.J.S.A. 2C:12-1(b)(12). "Serious bodily injury" is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]" N.J.S.A. 2C:11-1(b).

A person is guilty of third-degree aggravated assault with a deadly weapon if he "[a]ttempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon[.]" N.J.S.A. 2C:12-1(b)(2); N.J.S.A. 2C:12-1(b)(12). A conviction under N.J.S.A. 2C:39-4 requires proof that a person possessed a weapon "with a purpose to use it unlawfully against the person or property of another[.]"

Here, no actual serious bodily injury occurred, but it need not occur. See id. at 372. "[W]here the person does not cause serious bodily injury but only attempts to do so, he is guilty only if the attempt to cause that result is purposeful." State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986) (citing N.J.S.A. 2C:5-1(a)).

A person is guilty of fourth-degree aggravated assault-firearm pointing if he "[k]nowingly under circumstances manifesting extreme indifference to the value of human life points a firearm, as defined in [N.J.S.A. 2C:39-1(f)], at or in the direction of another, whether or not the actor believes it to be loaded[.]" N.J.S.A. 2C:12-1(b)(4).

In claiming the trial court erred in denying his motion for acquittal of the second-degree aggravated assault and third-degree aggravated assault-firearm pointing charges pertaining to Y.G. and the children, defendant argues the State's evidence only proved that N.I. was the target of the two gun shots he fired. He contends that the State's witnesses testified that as he approached the car, his first shot was aimed at the car's front bumper. Defendant claims that the second shot was fired at N.I. when the gun was inside the front passenger side window. N.I. stated that if he had not swerved the car, he would have been shot rather than the bullet hitting the air conditioner controls and landing near his foot. Defendant further maintains that there was no testimony that he was aware that J.G. and Jo. G. were in the car, thus there was no reason to believe that he targeted them.

The State contends the trial judge correctly denied the motion, arguing that a jury could have inferred defendant purposefully attempted to cause serious bodily injury to each of the four victims in a car when he pursued the car knowing they were in the car when he fired two shots from close range.

As to Y.G., giving the State the benefit of all favorable testimony and inferences, a reasonable jury could find beyond a reasonable doubt that defendant was guilty of second-degree aggravated assault-serious bodily injury and aggravated assault-firearm pointing against her. There is no doubt that defendant was aware of Y.G.'s presence. She was in the front-passenger seat when defendant was outside the car and placed his hand inside her window to fire the second shot as N.I. drove away. Aiming a gun at such proximity could justify a reasonable factfinder to conclude there was an intent to inflict serious bodily injury against Y.G. See State v. Sharp, 283 N.J. Super. 296, 300 (App. Div.), certif. denied, 142 N.J. 458 (1995) (holding that when the defendant aimed a gun chest high at two officers standing shoulder to shoulder five away and fired, such actions would justify a finding that the defendant acted with the purpose to kill both of the officers.).

We reach a different result as to the children. Contrary to the State's assertion, there was no evidence that defendant was aware the children were in the car when he fired his gun shots at the front bumper or inside the car. The children were in the backseat the entire time. There was no testimony that they got out of the car when N.I. approached defendant before he obtained his gun. In fact, J.G. testified that when he heard the gunshot, he got down in the backseat to avoid being seen by defendant. The only indication that defendant might have had some awareness of the children's presence in the car was testimony by N.I. that the children were "hanging out of the car" after he told them to stay in the car when he initially approached defendant. However, considering this vague comment without further explanation by N.I. or any other witness, coupled with the absence of any testimony that defendant saw the children, we are convinced there was no evidence that defendant was aware of the children's presence in the car. Moreover, there was no testimony regarding defendant's conduct from which one could reasonably infer that defendant was aware the children were in the car. Consequently, the trial judge should have granted defendant's motion to dismiss all the charges against the children.

III.

For the first time on appeal, defendant contends that the trial judge erred in instructing the jury by not providing individual aggravated assault charges for each victim concerning each gun shot fired. During the charge conference, defendant did not object to the judge's decision to not read individual charges for each victim. Thus, the judge advised the jury that there were four victims and read the charge once as it applied to each of the four victims and directed the jury to consider each charge separately as to each victim, rather than reading the same charge for each victim.

We are mindful of some well-settled principles. "[A]ppropriate and proper charges to a jury are essential for a fair trial." State v. Collier, 90 N.J. 117, 122 (1982) (quoting State v. Green, 86 N.J. 281, 287 (1981)). A defendant is entitled "an adequate instruction of the law." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998) (citation omitted), aff'd, 158 N.J. 149, 150 (1999). However, where a "defendant did not object to the jury instructions at trial, we must apply the plain error standard." State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)). With regard to a jury charge,

plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."

[Ibid. (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

An "error in a jury instruction that is 'crucial to the jury's deliberations on the guilt of a criminal defendant' is a 'poor candidate[] for rehabilitation' under the plain error theory." Ibid. (quoting Jordan, supra, 147 N.J. at 422). Nevertheless, any such error is to be considered "in light of 'the totality of the entire charge, not in isolation.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Moreover, "any alleged error also must be evaluated in light 'of the overall strength of the State's case.'" Ibid. (citation omitted).

Applying these principles, we are satisfied that the judge's decision not to provide individual instructions for each victim based on each gunshot was not plain error. The judge made it clear to the jury that each charge applied to the four victims and they were required to consider defendant's guilt for each charge separately as to each victim. We find no basis to reverse the convictions pertaining to N.I. and Y.G. based on the judge's jury instructions. Having concluded that the trial judge should have granted defendant's motion to dismiss all charges pertaining to the children, we need not address the jury instructions related to them.

IV.

Defendant contends that the prosecutor's misconduct during the trial deprived him of his due process right to a fair trial. Specifically, defendant claims that the prosecutor inflamed the jury's emotions by eliciting and repeatedly emphasizing the children's ages and that Y.G. was pregnant at the time of the shooting. In addition, defendant argues that the prosecutor made factual misstatements in his summation that J.G. was covering and looking at his sister during the shooting, and defendant pointed the gun at the direction of Y.G. and the children prior to shooting. These arguments, which were not made to the trial court and are presented as plain error, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Having carefully reviewed the record, we are convinced that the prosecutor's statements fell within the range of permissible argument and commentary on testimony. See State v. Lazo, 209 N.J.9, 29 (2012).

V.

Turning to defendant's challenge regarding his sentence, he contends that the trial judge misapplied State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), by imposing four consecutive terms for second- and third-degree aggravated assault offenses against N.I., Y.G., J.G., and Jo.G. based on the two gun shots fired.4 In addition, defendant argues that a twelve-year discretionary term subject to NERA for second-degree aggravated assault against N.I. was excessive because the judge over-emphasized aggravating factors to determine that he was extended term eligible and to increase the length of his sentence. We disagree.

We begin by noting that review of a criminal sentence is limited. A reviewing court must decide "whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). In imposing consecutive sentences, the trial court must separately state its reasons for imposing consecutive or concurrent sentences. See State v. Miller, 205 N.J. 109, 129 (2011); see also Yarbough, supra, 100 N.J. at 643. "When a sentencing court properly evaluates the Yarbough factors in light of the record, the court's decision will not normally be disturbed on appeal." Miller, supra, 205 N.J. at 129. As the Court has recently reiterated

The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Furthermore, "trial judges have discretion to decide if sentences should run concurrently or consecutively." Miller, supra, 205 N.J. at 128.

The court must consider all Yarbough factors

(1) There can be no "free crimes" in a system for which the punishment fits the crime;

. . . .

 
(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 predominantly 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. . . .

 
[Miller, supra, 205 N.J. at 128 (quoting Yarbough, supra, 100 N.J. at 643-44).]

The trial judge noted that there was more than one victim and that there were no free crimes. It is clear that pursuant to State v. Carey, 168 N.J. 413 (2001), and State v. Molina, 168 N.J. 436 (2001), where the only Yarbough factor found by the sentencing court are the multiplicity of victims, that factor "is entitled to great weight and should ordinarily result in the imposition of at least two consecutive sentences." Molina, supra, 168 N.J. at 443. As a result, we find no reason to disturb the judge's decision imposing consecutive sentences for the crimes committed against N.I. and Y.G.

Applying the same principles to defendant's sentence for second-degree aggravated assault against N.I., we are not persuaded that the judge abused her discretion in imposing a twelve-year extended term NERA sentence. She reviewed defendant's criminal history and present offenses before concluding that aggravating factors three, six, and nine applied. N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); -1(a)(6) (the extent of prior criminal record and the seriousness of the offense for which defendant was convicted); and -1(a)(9) (the need to deter defendant and others). She reviewed all mitigating factors and explained that none applied. See N.J.S.A. 2C:44-1(b)(1)-(11).

Our conclusion that the convictions regarding the children must be dismissed does not alter our evaluation of the twelve-year extended term NERA sentence. This sentence pertains to the aggravated assault against N.I., in which there is support in the record for the judge's weighing of aggravating and mitigating factors. The sentence does not shock the conscience. Therefore, we shall not second-guess and disturb the trial court's findings. See State v. Bieniek, 200 N.J. 601, 608-09 (2010); see also State v. O'Donnell, 117 N.J. 210, 215-16 (1989).

VI.

Lastly, defendant argues in a pro se supplemental brief that the out-of-court identification by N.I. and Y.G. at the police station on April 11, 2011, was suggestive and its admission at trial violated his constitutional rights. The trial judge denied defendant's pre-trial Wade5 motion seeking to bar the out-of-court identification on the basis that the fillers used in two photo arrays did not have his facial feature of "freckles." The judge found that defendant and the fillers had similar haircuts and facial features, with a sufficient number having freckles or facial marks. Defendant now contends, for the first time, that the photo arrays were based upon N.I.'s recollection of hearsay comments by Y.G. that defendant had freckles. Defendant maintains that the failure to question N.I. concerning these comments violates the blind administration test set forth in State v. Henderson, 208 N.J. 208, 290 (2011). Defendant further claims there was no testimony from law enforcement officers concerning the informational descriptors that were inputted in the computer to create the two photo arrays. There is no merit to these contentions.

Defendant did not raise those contentions before the trial court and since they do not involve the court's jurisdiction or a matter of public importance, we should not entertain them. See State v. Robinson, 200 N.J. 1, 20 (2009); see also Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997). More importantly, defendant's Henderson claims do not apply because the identifications in question predate the decision and there is no retroactive effect. Henderson, supra, 208 N.J. at 302.

Nevertheless, even considering defendant's contentions on the merits, we reject them under the applicable standard set forth in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), and adopted by our Supreme Court in State v. Madison, 109 N.J. 223, 232-33 (1988). Henderson, supra, 208 N.J. at 302. The Manson/Madison factors require the trial judge to determine first whether the identification procedure was impermissibly suggestive. State v. Herrera, 187 N.J. 493, 503 (2006). "[I]mpermissible suggestibility" is present if "'the identification was not actually that of the eyewitness, but imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist.'" State v. King, 390 N.J. Super. 344, 359 (App. Div. 2007) (emphasis omitted) (quoting Madison, supra, 109 N.J. at 234). We accord a trial judge's findings regarding the impermissible suggestiveness of the identification procedure "considerable weight." State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973)). "The findings of the trial judge as to reliability of the witnesses are [also] entitled to considerable weight." State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003). The identification may be admitted into evidence as long as "there is sufficient credible evidence in the record to support the findings." Adams, supra, 194 N.J. at 203.

In our view, the trial judge's findings that N.I. and Y.G.'s identifications were reliable are fully supported by the record and applicable law. There is no indication that the manner in which the police conducted the identification process suggested that defendant was the shooter. N.I. and Y.G. both had ample opportunity to see the defendant when N.I. initially confronted him and at the shooting shortly thereafter. In addition, the police station identifications occurred the same day as the shooting; in fact, a short time thereafter. Furthermore, Y.G. was familiar with defendant, having seen him prior to the incident.

In sum, we affirm defendant's convictions with the exception of his convictions for lesser-included third-degree aggravated assault with a deadly weapon and fourth-degree aggravated assault-firearm pointing against J.G. and Jo.G. which are dismissed. We remand for the entry of a corrected judgment of conviction. We do not retain jurisdiction.

Affirmed in part, reversed in part, and remanded.

1 We use the victims' initials to protect their identities.

2 A discretionary extended term pursuant to N.J.S.A. 2C:44-3a.

3 There was no challenge to the court's determination that J.G., ten years old at the time of the trial, was competent to testify.

4 In light of our conclusion that the charges against J.G. and Jo.G should be dismissed, we limit defendant's contentions to his sentence related to N.I. and Y.G.

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