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State v. Vigilante

Decided: June 19, 1992.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES VIGILANTE, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Essex County.

King, Gruccio and Brochin. The opinion of the court was delivered by Brochin, J.A.D.

Brochin

The opinion of the court was delivered by

BROCHIN, J.A.D.

After a trial by jury, defendant James Vigilante was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4a; unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The conviction for possession of a weapon for an unlawful purpose was merged into the aggravated manslaughter conviction. He was sentenced to twenty years' imprisonment with ten years' parole ineligibility for aggravated manslaughter and to four years' imprisonment for unlawful possession of a weapon.

Defendant, who was indicted for murder, conceded at trial that he had shot and killed his father, Ronald Vigilante. His main reliance was on self-defense, but he also sought and obtained a charge that authorized the jury to return a verdict of passion/provocation manslaughter. However, his claims of self-defense and passion/provocation manslaughter were rejected by the jury.

Defendant's principal argument on appeal is that the trial court's jury instructions were erroneous. Without having objected on this ground, defendant asks us for a reversal of his conviction because the jurors were not instructed that in order to convict him of murder, the State was obliged to disprove passion/provocation manslaughter beyond a reasonable doubt. The defendant also argues that the trial Judge erred by permitting the State to show that defendant owed gambling debts, used cocaine and worked only two or three days a week.

Alternatively, defendant contends that the sentence imposed on him was excessive.

We agree with defendant that the trial court's jury instructions were erroneous because they did not adequately inform the jury that in order to convict defendant of murder, the State was obliged to prove beyond a reasonable doubt that he was not acting "in the heat of passion resulting from a reasonable provocation" within the meaning of N.J.S.A. 2C:11-4b(2) when he committed the homicide. State v. Coyle, 119 N.J. 194, 221-222, 574 A.2d 951 (1990); State v. Grunow, 102 N.J. 133, 145, 506 A.2d 708 (1986); State v. Powell, 84 N.J. 305, 315 n. 10, 419 A.2d 406 (1980). The State does not argue to the contrary. However, it contends that the error was not prejudicial because there was insufficient evidence for the jury to find the necessary "passion" and "reasonable provocation." If the State's contention were correct, passion/provocation manslaughter should not have been submitted to the jury at all, the erroneous instruction was harmless error, and a reversal of defendant's conviction would not be required. See State v. Erazo, 126 N.J. 112, 123, 594 A.2d 232 (1991); State v. McClain, 248 N.J. Super. 409, 416, 591 A.2d 652 (App.Div.1991), certif. denied, 126 N.J. 341, 598 A.2d 897 (1991). For the following reasons, however, we conclude that the evidence was sufficient to support a verdict of passion-provocation manslaughter.

State v. Mauricio, 117 N.J. 402, 411, 568 A.2d 879 (1990), defines the elements of passion/provocation manslaughter as follows:

the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying. [Citation omitted.] The first two criteria are objective, the other two subjective. If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated. [Citation omitted.]

The State presented evidence from which the jury could have found that defendant procured a handgun from a friend and

then, armed with the gun, went home intending either to murder his father or to steal his money. If the jury found that defendant's primary purpose in returning home was to commit theft, they could also have found that defendant had armed himself so that he would be prepared for murder if he was discovered. Obviously, the State's version of the facts did not require a passion/provocation manslaughter charge.

However, from the testimony of defendant, his mother, his sister and a psychiatrist who testified as an expert witness, the jury could have found this different scenario. Ronald Vigilante, defendant's father, was a former Newark policeman who had been dismissed from the police force. Although shorter than defendant, Ronald was stronger than he. Ronald had been committed to the Carrier Clinic for approximately three months and was later treated at the Belleville and Bloomfield Community Mental Health Centers. Defendant's psychiatric expert testified that Ronald

was suffering from an acute psychosis with aggressive features probably of a schizophrenic-type psychosis, that he was extremely dangerous, that he was dangerous to ...


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