On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 99-5-1855-I.
Before Judges Petrella, Steinberg and Alley.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 22, 2001
An Essex County grand jury returned Indictment No. 99-5-1855, charging defendant, Juan Carlos Viera, with first-degree murder of Senaida Rodriguez, N.J.S.A. 2C:11-3(a)(1)(2) (count one); first- degree attempted murder of Raymond Sierra, N.J.S.A. 2C:11-3, :5-1 (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a handgun with the purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4(a) (count four). In addition, Essex County Indictment No. 99-5-1856, charged defendant with second- degree unlawful possession of a handgun by a convicted person, N.J.S.A. 2C:39-7(b).
A jury found defendant guilty of second-degree passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2), as a lesser-included offense of count one, attempted murder of Sierra, and possession of a handgun without a permit. The jury acquitted defendant of possession of a weapon for an unlawful purpose. After the jury returned its verdict, defendant entered a plea of guilty to the charge of possession of a weapon by a convicted person. Because defendant possessed a firearm during the commission of the offenses, the Graves Act was implicated. N.J.S.A. 2C:43-6(c). Moreover, because defendant previously had been convicted of first- degree robbery while armed with a firearm, the judge granted the State's application for imposition of a mandatory extended term. N.J.S.A. 2C:43-7(c); N.J.S.A. 2C:44-3(d).*fn1 In addition, because defendant caused the death of Rodriguez and attempted to kill Sierra with a deadly weapon, the judge concluded that the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, was implicated.*fn2 Accordingly, on count two, the judge ordered defendant to serve an extended fifty-year term with a forty-two year, five-month, and two-day period of parole ineligibility.*fn3 On count one, the judge ordered defendant to serve an extended twenty-year term, with a seventeen-year period of parole ineligibility, concurrent to the sentence imposed on count two.*fn4 The judge also imposed a concurrent five-year term on the charge of possession of a handgun without a permit to carry and a concurrent ten-year term on the conviction for possession of a handgun by a convicted person. Finally, the judge also imposed the appropriate monetary penalties, fees, and assessments. Defendant appeals. We affirm in part and reverse in part.
According to the State's proofs, in the late summer and into the early fall of 1998, defendant's girlfriend, Josefina Garcia, was pregnant with his child. During that time, defendant was also romantically involved with four or five other women, one of whom was named Yolanda.*fn5 Yolanda was simultaneously involved with Raymond Sierra, the victim on the attempted murder count, with whom she had a son. Defendant's relationship with Garcia ended after they had an argument regarding his relationship with Yolanda.
When Sierra learned of the affair between Yolanda and defendant, he became enraged. He discovered that Yolanda had taken their son to defendant's apartment. Sierra armed himself with a bat with the intent to physically confront and assault defendant. He went to defendant's apartment with three or four of his friends in an attempt to retrieve his son.
Defendant did not testify at the trial. However, he had given a statement to the police which was read to the jury. In his statement to the police, defendant said that he saw Sierra and his friends outside the apartment and drove away. He also said Sierra and his friends got in their car and followed him. He further stated that Sierra told him he wanted to talk to him, and that Sierra got out of his car with a baseball bat. Defendant also said "the four other guys got out of the car as well and they had pipes and bats." Defendant said he put his car in reverse and fled.
Defendant told the police that he telephoned his house and was advised by Yolanda that Sierra and his friends had broken into the apartment and had taken the child. She informed defendant that "[t]hey also took some things out of [the] apartment." According to defendant, he never returned to his apartment because he feared Sierra and his friends would kill him.
In his statement, defendant also said that while he was on the run, he maintained contact with Yolanda. At one point, she told defendant that Sierra had a gun and was looking for him. She also informed defendant that the victim, Sierra, intended to cut defendant's face with a knife. Defendant told police "[he] stayed on the street" because he felt Sierra and his friends would kill him if he went home.
For the next week, defendant stayed with friends in Newark and then moved into an apartment. He and Yolanda terminated their affair and last spoke on or about September 8, 1998. Defendant and Sierra had no further contact until their deadly encounter on October 9, 1998. During this period, defendant had purchased a .380 caliber revolver claiming he feared for his life.
Defendant said on October 9, 1998, at approximately 2:00 p.m., he was driving his car and saw Garcia. He told her that he needed to speak with her. Garcia got in the car. He told her he wanted to resume his relationship with her. He said Sierra then drove up next to him in his car and started yelling at him. Sierra's vehicle had tinted windows. Sierra told Rodriguez, his passenger, to roll down the window. Defendant said Sierra "pulled up right next to [his] car and started calling [him] pendejo."*fn6 He said Sierra also called him a maricón *fn7 and told him to pull over and park his car.
Defendant said that because Yolanda had told him that Sierra had a gun and was looking for him, he pulled out his gun and fired one shot at Sierra. However, the shot hit Rodriguez, striking the right side of her head. The bullet entered her skull and lodged in her brain, killing her instantly. Defendant admitted that he did not see Sierra with a weapon before he fired the shot at him, and that he did not intend to hit anyone. He said he only intended to frighten Sierra. ...