STATE OF NEW JERSEY VS. GREGORY OLIVER (15-04-0352, PASSAIC COUNTY AND STATEWIDE)


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5140-16T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY OLIVER, Defendant-Appellant. ____________________________ Submitted October 28, 2019 – Decided February 18, 2020 Before Judges Fasciale and Moynihan. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 15-04-0352. Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Ali Y. Ozbek, Assistant Prosecutor, of counsel and on the brief). PER CURIAM After trial with codefendants, Francis Brace and Jahmad Green, defendant Gregory Oliver appeals from his conviction by jury and sentence for first-degree aggravated manslaughter of Jaleek Burroughs, N.J.S.A. 2C:11-4(a)(1), as a lesser-included offense of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2), N.J.S.A. 2C:2-6, and N.J.S.A. 2C:2-3(d) (count one); two counts of second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts six and twelve); second-degree aggravated assault of Alaysia Chambers, N.J.S.A. 2C:12-1(b)(1), as a lesser-included offense of first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a), and N.J.S.A. 2C:2-3(d) (count eight); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(b) (count seven). Both victims were shot in an early-morning incident on August 31, 2014. The State alleged defendant and his codefendants shot at a gold Ford Taurus from which shots were also fired. Burroughs was shot in the head and pronounced dead on the sidewalk where he fell. Chambers, who was seated in Brace's BMW in which he had earlier picked her up, was also shot in the head; she survived her wound. Neither of the victims were the intended targets of the shootings. On appeal, defendant argues: POINT I A-5140-16T1 2 THE TRIAL [JUDGE] ERRED IN ADMITTING INTO EVIDENCE THE PRIOR RECORDED STATEMENTS OF A TESTIFYING WITNESS AS SUBSTANTIVE EVIDENCE PURSUANT TO N.J.R.E. 803(A)(1) AND N.J.R.E. 803 (C)(5). POINT II THE [TRIAL JUDGE] VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY ADMITTING "EXPERT" BALLISTICS TESTIMONY THAT IS CONTRARY TO THE CURRENT STATE OF THE SCIENCE AND FEDERAL LAW AND IS THEREFORE UNRELIABLE AND INADMISSIBLE UNDER N.J.R.E. 702. A. SUBJECTIVE BALLISTICS TOOLMARK EVIDENCE IS INADMISSIBLE UNDER N.J.R.E. 702 AS IT IS UNRELIABLE. B. ALTERNATIVELY, THIS COURT SHOULD REMAND THE MATTER FOR A RULE 104 HEARING AS TO THE SCIENTIFIC RELIABILITY OF THIS EVIDENCE, IF ANY. POINT III DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS AND A FAIR TRIAL WHEN THE STATE PUBLISHED TO THE JURY A GRUESOME PHOTOGRAPH OF THE HOMICIDE VICTIM, PARTICULARLY AS THAT EXHIBIT WAS LATER RULED INADMISSIBLE UNDER N.J.R.E. 403. POINT IV A-5140-16T1 3 THE SENTENCING COURT APPLIED INAPPROPRIATE AGGRAVATING FACTORS AND MISAPPLIED STATE V. YARBOUGH,1 RESULTING IN AN ...

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