858 A.2d 4 (2004) 372 N.J.Super. 227 STATE of New Jersey, Plaintiff-Respondent,
v.
Leslie KING, Defendant-Appellant. Superior Court of New Jersey, Appellate Division.
Submitted September 14, 2004. Decided October 12, 2004. *6 Yvonne Smith Segars, Public Defender, for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief and supplemental brief).
Paula T. Dow, Assistant Attorney General, Acting Essex County Prosecutor, for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General, of counsel and on the brief).
Before Judges STERN, WECKER and REISNER.
The opinion of the court was delivered by
STERN, P.J.A.D.
Defendant was convicted at a jury trial of murder, contrary to N.J.S.A. 2C:11-3a(1),(2) (count one), unlawful possession of a shotgun, in violation of N.J.S.A. 2C:39-5c(1) (count two), and possession of the shotgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count three). The trial judge merged count three with count one and sentenced defendant to life imprisonment, with thirty years to be served before parole eligibility on the murder conviction, and to a concurrent five year term for the weapons offense based on defendant's possession of the shotgun without first having obtained a firearm purchaser's identification card. Defendant also received a concurrent seven year sentence, with 85% to be served before parole under the No Early Release Act (NERA), for an eluding offense to which he pled guilty. The parties agreed that NERA applied to that offense.
On this appeal defendant argues:
POINT I - WHERE THE STATE CALLED SEVEN EYEWITNESSES AND NONE OF THEM WAS ABLE TO IDENTIFY DEFENDANT AS THE MURDERER, THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO PRESENT A DEFENSE AND TO A FAIR TRIAL. (Not Raised Below) POINT II - WHERE SOME WITNESSES TESTIFIED THAT DEFENDANT WORE A BLACK COAT AND OTHERS SAID HE WORE A BRIGHT YELLOW VEST, AND SOME WITNESSES TESTIFIED THAT THE GUNMAN WORE A BLACK COAT AND OTHERS SAID HE WORE A YELLOW VEST, THE COURT'S FAILURE TO INSTRUCT THE JURY ON HOW TO EVALUATE SUCH CONFLICTING IDENTIFICATION TESTIMONY DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO PRESENT A DEFENSE AND TO A FAIR TRIAL. (Not Raised Below) POINT III - WHERE SOME WITNESSES IDENTIFIED DEFENDANT AS "BROOKLYN" AND DEFENDANT DENIED THAT HE WAS KNOWN BY THAT NAME, IT WAS THE JURY'S JOB TO DECIDE WHETHER HE WAS KNOWN BY THAT NAME, BUT THE COURT TOOK THE ISSUE FROM THE JURY WHEN IT REPEATEDLY INSTRUCTED THAT "THE GRAND JURORS CHARGE THAT LESLIE RANDOLPH *7 KING, ALSO KNOWN AS BROOKLYN," COMMITTED THE ALLEGED OFFENSES. (Not Raised Below) POINT IV - BECAUSE THE STATE FAILED TO ADVISE DEFENDANT, A GUYANESE NATIONAL, THAT HE HAD A RIGHT UNDER THE VIENNA CONVENTION TO CONTACT THE GUYANESE CONSULATE FOR ADVICE AND ASSISTANCE UPON HIS ARREST, ANY STATEMENTS THE POLICE OBTAINED FROM DEFENDANT FOLLOWING HIS ARREST WERE OBTAINED IN VIOLATION OF DEFENDANT'S PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS RIGHT TO DUE PROCESS. In a supplemental brief which we permitted