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N.J.S.A. 2C:11-3a(1), -3a(2) (count 1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count 2); third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b (count 3); and a "certain persons" weapons offense, N.J.S.A. 2C:39-7b (count 4). He was sentenced to an aggregate prison term of fifty-eight years. "> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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-1752-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KESHAWN COLEMAN,

Defendant-Appellant. _______________________________ October 3, 2012 Submitted September 10, 2012 - Decided

Before Judges Sabatino, Fasciale, and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-10-1307.

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Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following an eight-day trial in March 2010, defendant Keshawn Coleman was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), -3a(2) (count 1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count 2); third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b (count 3); and a "certain persons" weapons offense, N.J.S.A. 2C:39-7b (count 4). He was sentenced to an aggregate prison term of fifty-eight years. Defendant now appeals, contending that (1) surveillance videotapes and corresponding descriptive testimony were improperly admitted at trial; (2) a juror who expressed concerns to the court during deliberations should have been removed; (3) the judge failed to provide a proper instruction to the jury on the "certain persons" offense; and (4) his sentence is excessive. For the reasons that follow, we affirm. I. The State's proofs at trial established the following pertinent facts and circumstances. On the night of May 18, 2007, James Felton, Lydell Rountree, and Derrick Porter were driving a van around Paterson. The men picked up two women. While they were driving around, Felton received two calls on his "bleep" cell phone. In the first bleep call, the unidentified male caller requested that Felton meet him at a fast-food chicken store located on Rosa Parks Boulevard. In the second bleep call, the caller made the same request. When the van pulled up to the chicken store, Felton attempted to contact the caller, but the caller did not pick up his phone. Ciera Redfern, defendant's former girlfriend, had dropped defendant off on the same street as the chicken
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store at an unspecified time earlier that night. She testified that she later returned to that area to drop off a cell phone battery. She further testified that when she dropped defendant off he was wearing "[a] black hood[ie] with bones on it, some blue jeans[,] and some tan boots." According to Porter, at some point, Felton got out of the van near the chicken store and told Porter to drive around the block. Shortly thereafter, at approximately 1:30 a.m. on May 19, Felton was shot and killed. Felton's cousin, Sharonda Chapman, had arrived at her friend Erica's house around midnight or 12:30 a.m. that night. She was sitting on the porch and braiding her friend's hair when she observed defendant, who was wearing a "black hooded jacket with skeleton bones," jean shorts, and Timberland boots. Chapman testified that she saw defendant by the chicken store and that she then heard gun shots coming from inside that location. She saw people running and "Doo-Boo [defendant] coming out backing up shooting at the chicken store doorway. As he was backing up[,] his hood fell off, [and] that's how I got a chance to see his face actually." Chapman stated that she then saw Felton fall and that after Felton fell, defendant "looked around and just took off." Nasheema Johnson, who had known defendant since high school, testified that a few weeks before the shooting, she saw defendant and Felton bump into each other at a club. According to Johnson, defendant was "angry a little bit," but he and Felton did not get into a fight. On the night of the shooting, Johnson was also sitting on Erica's porch. Johnson, like Chapman, testified that she saw defendant on the night of the shooting and that he was wearing a skeleton hoodie. She testified that she saw Felton and defendant go into the chicken store, that she heard gun shots, and that she then observed Felton "stumbling" out of the chicken store. She related that, at that point, defendant was wearing a black mask. According to Johnson, Felton was "hurt badly," but defendant "just pushed him off and just shot more" and then "took off." Another bystander, Jason Day, was inside the chicken store at the time of the shooting. He testified that when he was in the store, he heard shots go off, and he tried to run behind the counter. He stated that Felton ran into him, and they both fell to the floor.
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The day after the shooting, the police showed Chapman a photo array. She identified defendant as the shooter. Johnson met with the police four days later. She also was shown a photo array and identified defendant as the person who shot Felton. Later that week, Day also met with police. According to the transcript of his interview with the detectives, Day stated that the shooter was wearing a black hoodie with bones on it and jeans, although at trial he contended that he had not seen the shooter. Three days after the shooting, the police recovered from Redfern's home a pair of tan Timberland boots with suspected blood stains. The firearm used in the shooting was not recovered. A police informant, Barrick Wesley, also testified on behalf of the State. At the time of the trial, Wesley was serving a twenty-year prison sentence. Wesley met defendant in jail. Wesley testified that defendant told him in jail that he had shot someone "five or six times in the stomach." Defendant also told Wesley that he was worried that a witness would be able to identify him because his hood had come off as he ran out of the store. Wesley then wrote a letter to a Camden County prosecutor in an effort to obtain a transfer to a different facility in exchange for the incriminating information he had received from defendant.
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In addition to these factual proofs at trial, the State presented expert testimony from a ballistics expert, Sergeant James Ryan of the State Police, and a forensic pathologist, Dr. Alex Zhang. Sergeant Ryan opined that three of the four bullets collected from the scene were discharged from the same firearm; his results as to the fourth bullet were inconclusive. He described the bullets as being "most consistent" with a revolver. Dr. Zhang testified that Felton was shot four times: once in the right forehead, once on the left hip, once on the left buttock, and once in the right lower abdominal area. The pathologist concluded that Felton's gunshot wound to the head was a fatal injury. Defendant did not testify at trial and he did not present any witnesses. The jury found defendant guilty of counts 1, 2, and 3. Immediately thereafter, the trial was resumed before the same jury as to count 4, the "certain persons" weapons offense. The jury likewise found defendant guilty of count 4. Defendant then moved for a new trial, which the judge denied. In imposing defendant's sentence, the judge specifically found that aggravating factors (3) (the risk that defendant will re-offend), (6) (the extent of defendant's criminal record), and (9) (the need for deterrence), see N.J.S.A. 2C:44-1a(3), (6), (9), applied, and that no mitigating factors applied, see N.J.S.A. 2C:44-1b.

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The judge merged count 2 into count 1 and sentenced defendant to fifty years as to count 1, with an 85% parole ineligibility period pursuant to N.J.S.A. 2C:43-7.2, and an ensuing five-year probationary period. The judge also sentenced defendant to five years as to count 3, to run concurrent to count 1, and eight years (five years without probation) as to count 4, to run consecutive to count 1. The judge also imposed mandatory fines and fees. II. On appeal, defendant raises the following points: POINT I

THE COURT ERRED IN ADMITTING TWO SURVEILLANCE VIDEOTAPES BECAUSE THE IMAGES WERE SO UNCLEAR AS TO HAVE NO EVIDENTIAL VALUE, AND THE INTERPRETATION OF WHAT WAS DEPICTED BY THE WITNESSES WAS RANK SPECULATION

POINT II

THE COURT ERRED IN FAILING TO EXCUSE JUROR #8 WHO ASKED TO BE RELIEVED BECAUSE SHE WAS TROUBLED BY THE LACK OF PROOF AND HER BELIEF IT WAS HER DUTY TO CONVICT. (Not Raised Below)

POINT III

THE COURT EDITED THE CHARGE ON CERTAIN PERSONS NOT TO HAVE A WEAPON IN SUCH A WAY THAT THE COURT, NOT THE JURY, FOUND THE ELEMENT OF A PREDICATE OFFENSE

POINT IV

THE DEFENDANT'S SENTENCE OF 50 YEARS, 85% TO BE SERVED BEFORE PAROLE UNDER NERA, CONSECUTIVE TO THE SENTENCE FOR CERTAIN PERSONS NOT TO HAVE FIREARMS, WAS MANIFESTLY EXCESSIVE

We address these arguments in turn.
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A. During the course of the trial, the trial judge conducted an evidentiary hearing at defendant's request to determine the admissibility of two surveillance videotapes. One videotape was filmed inside the chicken store near the shooting location. The other videotape was filmed by a surveillance camera on a street pole by the store. Both surveillance tapes, particularly the chicken store video, are of less than optimal quality. Nevertheless, the videos are sufficiently clear to show the general configuration of the store and the nearby street, as well as the presence and movements of persons at those locations. Defendant's trial counsel did not object to the playing of the store surveillance tape. Instead, he objected to the "running commentary" of any witnesses for the State who would be "interpret[ing]" for the jury what happens in the video. Counsel argued that the store video is "of such poor quality that it's open to speculation as to what's on there," and that the audio commentary would interfere with the jury's factfinding role. The prosecutor agreed that the store videotape was blurry. He maintained, however, that the images on that tape were relevant and that any eyewitness could comment upon them, regardless of his or her location at the time of the shooting, so long as he or she could identify defendant's distinctive clothing. Upon considering these arguments, the trial judge ruled: If the witness was an actual observer of what's on that surveillance tape [he or she] can testify to what they see . . . . If that witness was not present inside or outside the store and [did not] actually observe[] what is on the tape, they cannot testify to it. However, the videotape will go into evidence or will be shown to the jury . . . I would also permit the prosecutor to make reference to it in his summation . . . .
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[Emphasis added.]

Consistent with this ruling, the store videotape was played for the jury during the testimony of Henry

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Hernandez, the police officer who had edited the videotapes. However, neither Officer Hernandez, nor any other trial witness, provided a "running commentary" to the store videotape while it was played. Defense counsel renewed his objection when the State attempted to move the store videotape into evidence after it had been played. He argued that the store videotape is "impossible to decipher" and that it "would have the tendency to be more confusing than probative." The judge rejected these contentions, again ruling that the store videotape could be shown to the jury and also commented on by the prosecutor in closing arguments. During his summation, the prosecutor presented the jury portions of the store videotape. The prosecutor suggested that defendant, wearing a hoodie, could be seen on the tape: What do you guys see here on the door? What do you see? Do you see a dark colored shirt with all white lines on it? . . .
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What do you see here right at the door? Black hood[ie] or black top. Let's put it that way. White lines. Arm[] extended.

The State also introduced at trial the surveillance videotape of the street scene. The tape was filmed from a pole at the intersection by the chicken store. This videotape, which was longer than the store videotape, was edited down to six shorter clips. Defendant's trial counsel similarly did not object to the playing of the street video. Instead, he expressed concerns about determining the timing of the clips. Detective Pelosi testified that a person matching the witnesses' description of defendant (i.e., a male with a skeleton hoodie and tan boots) appeared on the street videotape five times. During Chapman's direct examination, she noted that she observed defendant on the street videotape, and that he appeared to be walking on Godwin Avenue near the chicken store. On cross-examination of Chapman, defense counsel suggested that Chapman had watched the videotape so many times that she could anticipate what was going to happen. Johnson also testified regarding the street videotape after it was played, describing the location of the shooting and noting that she saw "Doo-Boo [defendant] running" in one of the clips. Ultimately, the street
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videotape was introduced into evidence over defense counsel's objection. The jury requested and was granted permission to view both videotapes during their deliberations. On appeal, defendant contends that the presentation and admission into evidence of the two videotapes was erroneous. He further contends that these proofs were highly prejudicial because the theme of his defense was misidentification. He argues that the store videotape was irrelevant because it was, in essence, blurry and undecipherable, although he admits that the street video was clearer. He further maintains that neither videotape was properly authenticated, although he acknowledges that his trial counsel stipulated to the proper functioning of the video camera equipment and the chain of custody. The law generally recognizes that authenticated recordings that are reasonably clear
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and which have at

least some probative value are commonly admissible. See 3 Wharton's Criminal Evidence

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