STATE OF NEW JERSEY v. SHAKEIL PRICE SHAKIEL PRICE SHAKEIL RACHAD PRICE SHAK KEIL AND SHAKEIL RASHAD PRICE

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. SHAKEIL R. PRICE, a/k/a SHAKIEL R. PRICE, SHAKEIL RACHAD PRICE, SHAK KEIL, AND SHAKEIL RASHAD PRICE, Defendant–Appellant.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. ALLAN L. EAFORD, a/k/a ALLAN LASHAUN EAFORD, ALAN EAFORD, LASHAWN S. EAFORD, ALLEN L. EAFORD, BILL EAFORD, Defendant–Appellant.

DOCKET NO. A–2937–10T2A–5405–10T2

Decided: March 12, 2014

Before Judges Fisher, Espinosa and Koblitz. Joseph E. Krakora, Public Defender, attorney for appellant Shakeil R. Price (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Allan L. Eaford (William Welaj, Designated Counsel, on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the briefs). Appellant Shakeil R. Price filed a pro se supplemental brief.

Defendants were tried together and convicted of first-degree murder and weapons offenses in connection with their roles in the shooting death of Sergio Soto. Defendants forcefully argue that the trial judge erred in permitting, over their objections, the prosecutor to narrate in his summation what was depicted in a video, even though no eyewitness had identified the individuals depicted in the video as being either or both defendants.   Because the prosecutor's narration was based on the testimony of eyewitnesses and inferences fairly suggested by that evidence, we find no error and affirm, although a remand is required for a correction of the judgments of conviction.1

The charges brought against defendants required the jury's consideration of events that took place at two different locations on the night of August 1, 2008, and the early morning hours that followed.   The State offered testimony of individuals who attended a party at a Perth Amboy nightclub that evening.   These witnesses testified that both Sergio Soto and defendant Allan Eaford were in attendance.   During the party, a melee broke out involving many of the attendees.   The jury heard testimony that Soto struck defendant Eaford with a bottle.

Sheree Perdomo picked up her friend, defendant Eaford, at a nearby fast food restaurant and drove him to his home on Glen Drive in the Keasbey section of Woodbridge.   His head was bleeding.

Soto also resided on Glen Drive.   At some point after the nightclub melee, Soto's girlfriend, Jessica Ortiz, responded to his request that she pick him up.   As they drove around this neighborhood, Soto exited Ortiz's car in front of a friend's house.   Finding his friend was not home, Soto did not return to Ortiz's car;  Ortiz described him as “hysterical.”   After driving the circuitous route back to Glen Drive without Soto, Ortiz saw two men speaking with Soto. Ortiz passed them and drove toward a nearby parking lot.   She parked out of sight of the three men and, after “maybe 10 minutes, 15 minutes,” Ortiz heard gunshots.

Shortly before the events Ortiz recounted, Derwin Rodriguez, who lived across the street from defendant Eaford, met his girlfriend, Amanda Cleary, who had just arrived by car.   Cleary arrived at approximately 1:30 a.m. and saw Soto, whom she knew because she was friendly with Ortiz, out on Glen Drive.   They spoke, and Soto asked Cleary to call Ortiz and tell her to pick him up.   Soon thereafter, as Cleary and Rodriguez remained outside, Cleary saw Ortiz and Soto drive by.

Cleary recounted that she and Rodriguez then entered Rodriguez's home.   Once inside they heard the sounds of an argument outside and stepped out on the porch.   Cleary observed Soto with his back toward her and two men facing him;  she testified they “were arguing about who hit who.”   Rodriguez testified that one of the two arguing with Soto was Eaford.   Cleary testified that she saw the man, who Rodriguez identified as Eaford,2 point a gun at Soto. Cleary recounted that she heard Soto “yell[ ] out I have 10 kids and no money, nothing to live for, with his arms out.”   Eaford lowered his arm, but the third man “grabbed” the gun from Eaford and “started shooting” Soto. Rodriguez similarly described the shooting.

At approximately the same time Cleary and Rodriguez made their observations, Salvadore Santana–Cabrera, who knew none of these individuals and had driven to Glen Drive with his wife and children to drop off another child, made similar observations.   He saw three men on the street arguing and then one pointed a gun at another.   When the man with the gun lowered his arm, the third man took the gun and shot the victim in the face.

After the shooting, Cleary testified she ran out to the street, despite Rodriguez's protestations, to tend to Soto. She felt no pulse and believed he was dead.   Ortiz arrived and also concluded Soto was dead.   The County Medical Examiner testified that Soto died as a result of multiple gunshot wounds to the head, neck and torso.

Neither Eaford nor the third man remained in this location for long.   The jury heard testimony of eyewitnesses that Eaford and the third man drove away in an SUV. Santana–Cabrera testified the SUV followed his vehicle but he eluded it on his way out of the neighborhood.

As mentioned earlier, after the nightclub melee, Sheree Perdomo drove defendant Eaford from a fast-food restaurant to his home on Glen Drive.   When she dropped him off, she saw defendant Price, whom she knew, standing outside his Tahoe, which had Virginia license plates.   Perdomo had trouble finding a place to park and drove out of sight of the area where defendants were standing on Glen Drive.   She then heard gunshots and ran toward Eaford's house, where she saw Soto on the ground.   She also observed that Price's vehicle was gone.   Perdomo returned to her car and drove to the house of a friend, Joanna.

Perdomo learned from Joanna that Eaford was in Avenel.   Together, they drove to Avenel and, from there, went with Eaford and someone named Jason to a Newark motel.   Eaford and Perdomo stayed in one room;  Joanna and Jason in another.   Sometime around 11:00 or 11:30 a.m. the next morning, the four drove to a Newark gas station where they were joined by defendant Price, who arrived in a Toyota.   Joanna and Jason left;  Perdomo and both defendants drove the Toyota to Virginia.

Price dropped Eaford and Perdomo off at a hotel somewhere in Virginia where they stayed one night.   Perdomo testified that Eaford told her Soto had hit him with a bottle at the Perth Amboy nightclub the night of August 1. Perdomo told Eaford that Soto was dead;  upon hearing this, Eaford said nothing and “put his head down.”   The next day Price picked up Eaford and Perdomo and drove to the home of Price's cousin in Martinsville, Virginia.   While there, defendant Price told Perdomo he shot Soto.

The next day, Price and Perdomo left Martinsville and returned to New Jersey;  Eaford stayed in Virginia.   During her testimony, Perdomo acknowledged she was charged with hindering the apprehension and prosecution of another, N.J.S.A. 2C:29–3(a)(7), and had been permitted entry into the pretrial intervention program (PTI) conditioned upon her agreement to testify truthfully in this trial.

The prosecutor also gained admission of what has been referred to as a video 3 of the Glen Drive occurrence in the early morning hours of August 2, 2008.   This video lies at the heart of one of the issues raised in these appeals.

Neither defendant testified.

The jury found both defendants guilty of first-degree murder, N.J.S.A. 2C:11–3(a), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(a), and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39–5.   They both unsuccessfully moved for a new trial.

Defendant Price was sentenced to life in prison, subject to an eighty-five percent period of parole ineligibility, on the murder conviction, and concurrent ten-year prison terms, subject to five-year parole ineligibility terms, on the weapons convictions.   Price was also sentenced to a consecutive ten-year prison term, subject to a five-year parole bar, on his conviction for being a person not entitled to be in possession of a weapon, N.J.S.A. 2C:39–7(b), by way of a trial that immediately followed the jury's verdict on the other charges.   Defendant Eaford was sentenced to a forty-five year prison term, with an eighty-five percent period of parole ineligibility, on the murder conviction and concurrent ten-year prison terms, subject to five-year parole bars, on the weapons convictions.

Defendants filed separate appeals.   In his appeal, defendant Price argues:

I.  THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO PRECLUDE THE PROSECUTOR FROM NARRATING DURING SUMMATION THE DVD WHICH HAD BEEN PLAYED TO THE JURY DURING TRIAL WITHOUT ANY AFFIRMATIVE TESTIMONY DESCRIBING ITS CONTENT.   THE COURT'S DENIAL SERVED TO ALLOW THE PROSECUTOR TO PRESENT TO THE JURY HIS PERSONAL OPINION REGARDING WHAT THE DVD DEPICTED, AND ESSENTIALLY CONSTI–TUTED THE PROSECUTOR'S TESTIMONY CHARAC–TERIZING THE RESPECTIVE ROLES AS WELL AS THE CRIMINAL CULPABILITY OF THE DEFENDANTS WITH–OUT ANY FACTUAL FOUNDATION IN THE TRIAL RECORD.

II. THE COURT FAILED TO CAUTION THE JURY THAT SHEREE PERDOMO'S ADMISSION OF GUILT COULD NOT BE USED AS EVIDENCE OF THE DEFENDANT'S GUILT.   U.S. CONST.   AMENDS.  V, XIV;  N.J. CONST.   ART. 1, PARS. 1, 10 (Not Raised Below).

III. DEFENDANT'S CONVICTION AND SENTENCE FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE MUST MERGE INTO HIS CONVICTION AND SENTENCE FOR MURDER.

A. Introduction.

B. The Defendant's Conviction and Sentence For Second–Degree Posses-sion of a Weapon for an Unlawful Purpose, Must Be Merged With His Conviction for Murder.

IV. THE DEFENDANT'S SENTENCE IS EXCESSIVE.

In a separate pro se brief, Price also argues 4 :

V. TRIAL COURT ERRED WHEN IT REFUSED TO CHARGE THE JURY WITH THE LESSER INCLUDED CHARGES OF AGGRAVATED MANSLAUGHTER, MAN–SLAUGHTER AND PASSION/PROVOCATION MANSLAUGH–TER [Not Raised Below].

VI. THE STATE'S USE OF CO–DEFENDANT SHEREE PERDOMO'S STATEMENT CREATED A PREJUDICIAL JOINDER AND DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS AS AFFORDED BY THE U.S. CONST.   AMEND XIV.

VII. THE TRIAL COURT'S FAILURE TO GIVE A CAUTIONARY INSTRUCTION WHEN A BRUTON [5] ISSUE AROSE DURING MS. PERDOMO'S TESTIMONY DEPRI–VING DEFENDANT HIS CONSTITUTIONAL RIGHT TO CROSS–EXAMINATION, CONFRONTATION, AND A FAIR TRIAL AS AFFORDED BY THE U.S. CONST.   AMEND VI AND XIV.

VIII. AN IMPERMISSIBLE BRADY [6 ] VIOLATION OCCURRED WHEN ․ THE PROSECUTOR WITHHELD EXCULPATORY EVIDENCE [FROM] THE DEFENSE PRIOR TO TRIAL;  THE PHOTO ARRAY IDENTI–FICATION RESULTS OF WITNESS SHEREE PERDOMO VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AS AFFORDED BY THE U.S. CONST.   AMEND XIV.

In his appellate brief, defendant Eaford argues:

I.  THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY REGARDING AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER AS LESSER INCLUDED OFFENSES OF PURPOSE–FUL/KNOWING MURDER (Not Raised Below).

II. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL ARISING OUT OF THE PROSECUTOR'S SUMMATION, IN WHICH HIS NARRATION OF A DVD WHICH HAD BEEN PLAYED TO THE JURY DURING TRIAL WITHOUT ANY AFFIR–MATIVE TESTIMONY DESCRIBING ITS CONTENT, SERVED TO PRESENT TO THE JURY HIS PERSONAL OPINION REGARDING WHAT IT DEPICTED, AND ESSENTIALLY CONSTITUTED THE PROSECUTOR'S TESTIMONY CHARACTERIZING THE RESPECTIVE ROLES AS WELL AS THE CRIMINAL CULPABILITY OF THE DEFENDANT AND CO–DEFENDANT WITHOUT ANY FACTUAL FOUNDATION IN THE TRIAL RECORD.

III. THE TRIAL COURT ERRED IN PERMITTING DERWIN RODRIGUEZ'[S] IN–COURT IDENTIFICATION TESTIMONY OF THE DEFENDANT, SINCE IT RESUL–TED FROM AN IMPERMISSIBLY SUGGESTIVE OUT–OF–COURT SHOW–UP IDENTIFICATION PROCEDURE.

IV. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT II CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT I CHARGING PURPOSEFUL/KNOWING MURDER (Parti-ally Raised Below).

V. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We find insufficient merit in Price's Points VI, VII and VIII, and Eaford's Point III, to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   With the exception of remanding for correction of the judgments of conviction in light of the judge's failure to merge the possession of a weapon for an unlawful purpose convictions into the murder convictions for sentencing purposes, we affirm for the reasons that follow on the remaining issues.

I

Defendants both argue that the prosecutor exceeded the bounds of proper advocacy when he narrated the video during his summation.   We disagree.

The video was first introduced at trial during Investigator Gary Charydczak's testimony.   Defendants did not object to the admission or playing of the DVD, but they did object to the investigator's description of the images on the DVD. The prosecutor assured the trial judge that he only intended to have the investigator play the DVD, and the judge agreed that “identification is certainly something [the prosecutor] would avoid” during this testimony.   Investigator Charydczak played the DVD for the jury without comment as to what it depicted.

The next morning, anticipating the prosecutor's use of the DVD in his summation, defendants requested that the prosecution be prohibited from “commenting or stating that this is so and so in the video ․ only because ․ that evidence was never presented ․ to the jury by any witness from the State.”   The judge responded:

So you would ask me to prohibit him from inferring from the evidence that particular people in the video are particular people and saying to the jury ladies and gentlemen, I would suggest to you that based upon the evidence and the testimony you will find that so and so is this person?

He has a right to point to the people and based upon the evidence clearly it is an accurate position.   Clearly the State may not tell them what his personal opinion is.

At the end of his summation, the prosecutor played the DVD for the jury, providing the following running commentary of its images:

I think I'd like to end by showing you the video.

There's Allan [Eaford].   Got to go inside.   Check out the pants.   Look how they are.

There's our Tahoe and there's Price.   Okay? And – stop that just a little bit.   That was Sheree Perdomo's white Audi going to park.   Allan's gotten out.   And there's Allan.   And there's [Price].   Allan's not going up the stairs to get his head fixed.[7]  He's talking to his man.

Now – now he's going up those stairs, a man with a purpose.   He's going to get something.   He's going to get that gun.   He's in there less than a minute.

And now this is Sergio [Soto]. Okay? Sergio and Price talking.  [Soto is] putting his hands up like the witnesses say he did.   Gesturing.

Now here comes Allan.   You notice Sergio's still standing up.   He's still alive.   They're all moving over on the other side of the Tahoe by the sidewalk.

Boom. There it is.   Sergio goes down.

That car is pulling away.   That's Cabrera's car.   Okay?

Eaford runs away.   Price jumps in the Tahoe, goes in the same direction that Cabrera's car went.   Okay? Just like [Cabrera] said, came up behind him.   Shakeil Price driving that Tahoe.   Okay. Okay?

There. White Audi.

Talking. Talking.   Talking.

There we go.   There's Eaford bounding up the stairs.   Okay?

What does that look like?   Motion sensor puts the porch light on.

Look at that.   Those are decals.   That's the Chevy logo and it's the white license [plate].

Again Sergio.

Sheree Perdomo told us something else about Shakeil [Price].   She told us that he said to Sergio you shouldn't be messing with my man Allan.

Sergio.

Those are the lights from that car which was Mr. Cabrera's.

Price jumps in the Tahoe.

Eaford runs away.

You have all the pieces of the puzzle.   I suggest to you that the evidence will leave you firmly convinced of the defendant[s'] guilt, each of them.

Thank God for that video.

Thank you.

Defendants' argument that this summation was improper requires our consideration of familiar principles.   It is well established that prosecutors “are afforded considerable leeway” when presenting “vigorous and forceful closing arguments to juries,” State v. Frost, 158 N.J. 76, 82 (1999), so long as the prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom, State v. Smith, 167 N.J. 158, 178 (2001).   See also State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L. Ed.2d 593 (1969);  State v. McGuire, 419 N.J.Super. 88, 142 (App.Div.), certif. denied, 208 N.J. 335 (2011).

Because jurors are likely to accord special deference to the comments of the prosecutor, see State v. Walden, 370 N.J.Super. 549, 558 (App.Div.), certif. denied, 182 N.J. 148 (2004);  see also Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L. Ed.2d 1314, 1321 (1935), courts have identified particular conduct that must be avoided.   For example, prosecutors are prohibited from presenting their personal opinion or beliefs to the jury.   Specifically, “[a] prosecutor is guilty of misconduct if he implies to the jury that he possesses knowledge beyond that contained in the evidence presented, or if he reveals that knowledge to the jury,” State v. Feaster, 156 N.J. 1, 59 (1998), because “[t]he expression of personal opinion places the prosecutor's own credibility and the prestige of the office against that of defense witnesses,” State v. Michaels, 264 N.J.Super. 579, 640 (App.Div.1993), aff'd, 136 N.J. 299 (1994).   Consequently, prosecutors must refrain from opining “in such manner that the jury may understand the opinion or belief to be based upon something which he knows outside the evidence.”  State v. Thornton, 38 N.J. 380, 398 (1962).

When examining a prosecutor's arguments, we are to “be mindful that criminal trials create a charged atmosphere.”  State v. Scherzer, 301 N.J.Super. 363, 439 (App.Div..), certif. denied, 151 N.J. 166 (1997).   Although “not every deviation” warrants reversal, State v. Loftin, 146 N.J. 295, 387 (1996), we “have not hesitated to reverse convictions where we have found the prosecutor in his summation overstepped the bounds of propriety and created a real danger of prejudice to the accused,” State v. Johnson, 31 N.J. 489, 511 (1960);  see also Smith, supra, 167 N.J. at 178.

We have examined the video, which was provided pursuant to the request we made during oral argument.   See State v. Diaz–Bridges, 208 N.J. 544, 565–66 (2012).   Its images are by no means self-evident.   It is nearly impossible to identify with any modicum of certainty the persons in the video;  the picture is grainy and the depictions of their faces are blurry.   Indeed, that a shooting is even depicted is hardly apparent.

As we have observed, the video did not make its appearance at trial until the testimony of all eyewitnesses was concluded.   Tactically, it is understandable that the prosecutor did not ask any eyewitness whether they could identify the individuals in the video;  any hesitancy, let alone inability, in describing what the video depicted may have been detrimental to the State's burden of convincing the jury of defendants' guilt beyond a reasonable doubt.   On the other hand, the prosecution ran the risk that the jury could have doubted the weight of the prosecution's proofs by his apparent unwillingness to ask the eyewitnesses to link their testimony to the video.

In the final analysis, the question is whether the prosecutor – in narrating the video – fairly commented on the evidence in the record and whether the inferences urged in his argument were legitimately deducible from the evidence.   Viewed in light of this principle, we cannot conclude that the trial judge erred in permitting the prosecutor's description of what the video may have revealed.   Everything the prosecutor said about the video, as he narrated, was either supported by direct evidence in the record or a legitimate inference to be drawn therefrom.

Certainly, defendant Eaford's argument about the summation in this regard is easily dispatched.   Rodriguez – who knew Eaford – identified him as the individual he and others saw point a gun at Soto. Cleary, Rodriguez and Cabrera also testified the man identified by Rodriguez as Eaford lowered the weapon and the third man took the gun and used it to shoot Soto. The prosecutor's argument to the jury, in which he pointed out Eaford in the video, was firmly linked to this testimony, as well as the testimony of Perdomo and Ortiz, both of whom saw Soto in Eaford's company on Glen Drive moments before they heard gunshots.

To be sure, Cleary, Rodriguez and Cabrera did not identify Price as the third man.   But Perdomo and Ortiz testified they saw Price with Eaford and Soto on Glen Drive shortly before gunshots rang out.   And Perdomo testified not only that Price admitted to her that he shot Soto but also that Price told her that he told Soto moments before the shooting that he should not have messed with Eaford.   In addition, Perdomo observed Price's Tahoe in Eaford's driveway shortly before she heard gunshots and that the Tahoe and Price were gone after she arrived shortly after the shooting.   All this evidence provided the necessary link for the prosecutor's argument to the jury that the shooter – the third man – depicted in the video was Price.

We, thus, reject defendants' contention that the prosecutor exceeded the limits of proper advocacy in arguing in his summation about what he believed the jury could ascertain from the video.   We recognize that the prosecutor's tone was authoritative, and when viewed in isolation from the rest of his summation, it may have sounded as if the prosecutor was expressing a personal belief about the content of the video.   See State v. Marshall, 123 N.J. 1, 154 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L. Ed.2d 694 (1993).   But, in that portion of the summation preceding his narration of the video, the prosecutor described the eyewitnesses' testimony which he later tied to the video.   Admittedly, the prosecutor did not preface his narration with a disclaimer that it was based on what the witnesses had said.   But that is clearly what occurred, and the judge instructed the jury that the attorneys' arguments in their opening statements and summations were not evidence.

Had defendants requested a more detailed jury instruction – perhaps a caution to the jury that the prosecutor's narration of the video was not based on anything but what he believed the evidence suggested – the judge's exercise of discretion may have warranted it.   There are times when the usual instruction regarding the arguments of attorneys will simply not suffice, and this may have been one such instance.   But defendants did not seek an additional instruction regarding the summation and, indeed, defendants do not now argue that the judge's instructions in this regard were inadequate;  their objections at trial and their arguments here are based on the contention that the prosecutor's description of the video was not based on evidence in the record.   We reject that argument because the prosecutor's assertions about what the video depicts find support in the evidence or legitimate inferences the jury could draw from that evidence.

II

In his second point, Price argues that the judge did not correctly instruct the jury regarding the effect Perdomo's entry into PTI may have had on the jury's weighing of the evidence.   Price did not make this argument at trial.8

As noted earlier, Perdomo was charged with hindering the apprehension and prosecution of another.   She was diverted into PTI in exchange for her agreement to testify truthfully in this matter.   The judge instructed the jury that evidence of her entry into PTI, like a guilty plea, “may be used only in determining the credibility or believability of her testimony in terms of did she have an interest in testifying on behalf of the State” and other similar precautions.   In this appeal, defendant Price complains of the judge's failure to also explain to the jury that Perdomo's admission into PTI 9 could not be used as evidence of Price's guilt.

We find insufficient merit in this argument to warrant further discussion, R. 2:11–3(e)(2), except to add that the circumstances at hand are unlike those that normally prompt the instruction Price now claims should have been included.   That is, the model jury charge on this point 10 was undoubtedly intended to address the more usual circumstance when a cooperating witness has pleaded guilty to the same or related offense to that which the jury is being asked to determine.   The concern addressed by the charge omitted here is that recognized by the Court in State v. Stefanelli, 78 N.J. 418, 430–31 (1979) (quoting United States v. Toner, 173 F.2d 140, 142 (3d Cir.1949)) –that if a jury hears that A admitted that he conspired with B, “it is pretty hard to avoid the conclusion that B must have conspired with A.” But, here, Perdomo admitted to her criminal conduct after the shooting;  her admission did not have the same nexus that normally warrants the instruction omitted here.

III

Price argues in his fourth point and Eaford argues in his first point that the trial judge erred in failing to charge the jury about lesser-included offenses to the first-degree murder offense charged in the indictment.   We find these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11–3(e)(2), but briefly point out how defendant's arguments are without merit for different reasons.

Price's argument, posed for the first time in this appeal, that the jury should have been given the opportunity to convict him of lesser-included offenses, is without merit because there is simply no evidence to support a finding – if the jury determined that Price was the shooter – of anything less than purposeful or knowing murder.   Whoever shot Soto shot him seven times and at point blank range.   There is no evidence or inference to be drawn that the shooter was reckless or had any lesser state of mind than the purpose to kill.   See, e.g., State v. Ramsey, 415 N.J.Super. 257, 267–69 (App.Div.2010), certif. denied, 205 N.J. 77 (2011).   Moreover, Price defended on the theory that he was not present at the scene of the crime.   His present argument that the jury should have been permitted to consider some lesser offense would have run counter to that defense.

Eaford's argument is different.   It is arguable that there was a rational basis for charging a lesser-included offense because – in light of the description of the crime given by three eyewitnesses, Cleary, Rodriguez and Cabrera – the jury could have found that Eaford brought the gun to the argument, that he pointed the gun at Soto, but that he then lowered his arm before his accomplice took the gun from him and shot Soto seven times.   Although the evidence did not rationally support a lesser-included offense for the individual who shot Soto, the conduct attributed to Eaford by the eyewitnesses, although certainly suggestive of his guilt as an accomplice, also could support a finding of aggravated manslaughter, i.e., the reckless causing of death under circumstances manifesting extreme indifference to human life, N.J.S.A. 2C:11–4(a)(1).

Eaford, however, not only did not argue for the inclusion of lesser-included offenses in the judge's charge, he in fact advocated against such jury instructions in the face of the judge's suggestions that the jury be instructed on lesser-included offenses.   Although it is fair to conclude that the lesser-included offenses now urged as a matter that should have been charged were inconsistent with Eaford's theory that he too was not present when the shooting occurred – a basis for excusing the charging of an applicable lesser-included offense, State v. Chew, 150 N.J. 30, 75 (1997) (holding that a lesser-included offense charge may be given only “when the instruction does not conflict with a defendant's trial strategy”) – Eaford's resistance to such a charge and his failure to object to its absence, requires our rejection of his now-belated argument.   R. 1:7–2.   And although reversal may be required notwithstanding the lack of objection – if the erroneous instruction or omission was clearly capable of producing an unjust result, R. 2:10–2 – we are not persuaded that the judge's acceding to Eaford's argument that lesser-included offenses not be instructed rises to that level.

IV

Both defendants argue that their convictions for possession of a weapon for an unlawful purpose should have merged, for sentencing purposes, with the murder convictions.   The State concedes the point, and we agree that although there may be instances in which such a conclusion is not always accurate – such as when the unlawful purpose for which the weapon was possessed is not the same as the substantive offense for which merger is sought, see State v. Diaz, 144 N.J. 628, 638–39 (1996) – in this case the only unlawful purpose the jury could have found for defendants' possession of the weapon was the killing of Soto. Consequently, the possession of a weapon for an unlawful purpose convictions should have merged with the murder convictions for sentencing purposes.   See State v. Romero, 191 N.J. 59, 79–80 (2007).

Defendants also argue their sentences were excessive.   We find insufficient merit in these arguments to warrant further discussion in a written opinion, R. 2:11–3(e)(2), adding only the following brief comments concerning the parole ineligibility period imposed on Price's life sentence.

The trial judge made findings as to the aggravating factors that applied, and he found no mitigating factors that inured in Price's favor.   Those findings are supported by the record and command our deference.   See State v. Bieniek, 200 N.J. 601, 608–09 (2010).   Recognizing the particularly heinous crime that had been committed – the judge emphasized that Soto was shot seven times at very close range – the judge expressed his intention to impose on Price the maximum sentence permitted by law:

N.J.S.A. [2C:]11–3(b) says that murder is a crime of the first degree and that a defendant convicted of murder shall be sentenced by the [c]ourt to a term of 30 [years] to life imprisonment.   In this case given the extent of the defendant's prior record, the nature of the offenses, two weapon offenses in particular, the role of this particular actor in the shooting, the number of wounds, the placement of wounds and the heinous manner in which it was perpetrated and the clear need to deter this defendant and others from violating the law, and the finding by this court that this defendant poses a significant risk to reoffend and should be incarcerated for the longest term possible, it is the sentence of the court that you be given the longest term possible.   And you're sentenced to a term of imprisonment of life with a mandatory minimum 30 years.

[Emphasis added.]

Before the proceeding concluded, the prosecutor reminded the judge, without contradiction from defense counsel, that he was required to impose an eighty-five percent period of parole ineligibility on the life sentence, to which the judge immediately agreed.

In this appeal, Price complains the judge increased the parole bar by decades without consideration of any factors other than those that prompted the judge to originally impose a thirty-year parole eligibility bar.   But we reject this characterization of what occurred because, as revealed in that part of the sentencing transcript quoted above, the judge's intention was to impose the maximum sentence permitted by law and the mention of a thirty-year parole bar was accidental and inconsistent with what was required by N.J.S.A. 2C:43–7.2 (defining a life term as seventy-five years for purposes of determining the length of a NERA parole ineligibility term).

The sentences imposed fell well within the trial judge's discretion and do not shock the judicial conscience.  Bieniek, supra, 200 N.J. at 608–09;  State v. Roth, 95 N.J. 334, 364–65 (1984).   Indeed, the record demonstrates that the sentences imposed on both defendants were well deserved.

Affirmed.

FOOTNOTES

1.  FN1. We calendared these matters back-to-back and now consolidate them for purposes of rendering a single opinion.

2.  FN2. Cleary did not know Eaford or identify him as the man who originally pointed the gun at Soto.

3.  FN3. Actually, the surveillance camera took individual still photographs at intervals ranging from one second to thirty-eight seconds between photographs.   Police placed these photographs on a DVD so it could be played for the jury as a somewhat fluid video.

4.  FN4. For convenience, we have renumbered Price's pro se arguments.

5.  FN5. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L. Ed.2d 476 (1968).

6.  FN6. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed.2d 215 (1963).

7.  FN7. Undoubtedly referring to the injury Eaford received during the nightclub melee.

8.  FN8. Eaford has not made this argument.

9.  FN9. The model jury charge on this point does not neatly fit this case because Perdomo's admission into PTI did not require a guilty plea of the charges brought against her.   Perdomo did, however, admit to the facts that would have supported the charges leveled against her, so, upon request, it would have been appropriate for the judge to advise the jury that her admission of guilt could not be used as evidence of Price's guilt.

10.  FN10. The judge utilized a modified version – in light of the fact that Perdomo did not plead guilty but was admitted to PTI – of Model Jury Charge (Criminal) “Testimony of a Cooperating Co–Defendant or Witness” (2006), with the exception that he did not read to the jury the last sentence of the model charge, and instruct the jury that Perdomo's PTI admission could not be used “as evidence that this defendant is guilty of the crimes that he[ ] is charged with.”

PER CURIAM

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