On appeal from Superior Court of New Jersey, Law Division, Passaic County, 99-10-0979-I.
Before Judges Collester, Fuentes and Bilder.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Tried to a jury, defendant Lesnik Homdziuk was convicted of second-degree manslaughter, contrary to N.J.S.A. 2C:11-4b, third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3a and 2C:12-3b, second-degree tampering with a witness, contrary to N.J.S.A. 2C:28-5a, and third-degree hindering apprehension, contrary to N.J.S.A. 2C:39-3b(2). On February 22, 2000, Judge Randolph M. Subryan sentenced defendant to a presumptive term of seven years on the manslaughter convictions, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He then merged the convictions of terroristic threats and hindering apprehension with the second-degree tampering with a witness conviction and imposed a consecutive sentence of five years. Therefore, the aggregate sentence imposed was twelve years with seven, nine months and six days to be served under NERA.
On the afternoon of July 11, 1999, the Clifton Police Department received a report of a body near the Passaic River in a wooded area adjacent to Randolph and VanRiper Avenues. The responding patrol officers located the body in a clearing surrounded by thick underbrush and a canopy of trees. Clifton Detectives James Scartozzi and Nick Donato were assigned to the investigation. Detective Scartozzi knew the area was used as a resting place by vagrants. Several makeshift beds were in the area along with bags of clothing hanging from tree limbs. Led to the scene by patrol officers, the detectives found the supine body of a man dressed in green pants and a t-shirt. A thick green fleece blanket covered most of the body. Over the face was a green floral pattern pillow case. The body was lying on a piece of cardboard which had been converted to a makeshift bed with a sofa cushion used as a pillow. No blood was observed on the victim's clothing
The patrol officer introduced the detectives to Mikolaj Szakalis, who told them he had found the body and notified the police. Because Szakalis spoke broken English, the detectives summoned a Polish-speaking police officer to assist in their interview. Szakalis related that the dead man was a fellow vagrant who lived in the area. He thought his name was Jan or Jon and did not know his surname. He said that he last saw the victim the prior day at a liquor store and discovered the body in the morning when he was looking for an area to fish. During the interview, Detective Scartozzi noticed that Szakalis had bruises on his face that were healing. When asked, Szakalis said he had been in a fight with another vagrant a couple of days earlier. He also said he did not witness any fight involving Jan, but then added he though that defendant may have inflicted injuries to him.
Soon afterwards the victim was positively identified as Jan Wszeborowski. The police investigation soon disclosed that both Szakalis and the victim were among a number of homeless people who frequently gathered at the bank of the Passaic River in the Botany Village section of Clifton in an area they called "Headquarters." Other persons who frequented Headquarters included the defendant and co-defendant, Marek Z. Malinowski.
The autopsy was performed the following day by Dr. Geetha A. Nataragon, a forensic pathologist with the Passaic County Medical Examiner's Office. She observed bruising and other visual injuries to the victim's face, head, upper chest and back. The most significant external injuries were to the left side of the victim's face. There was bruising and swelling over the left upper facial area. Over the left upper jaw bone or cheek bone area was a prominent one inch diameter bruise, and the surrounding tissue was swollen with a bluish, purple color. There was blood within the white area of the left eye and bleeding on the left side of the naso labial fold. Dr. Nataragon opined that all of the facial injuries were of the same age and were caused by blunt force trauma to the face and head. Her internal examination disclosed no skull fractures, but there was hemorrhaging in the brain and acute cerebral edema. Other areas also showed evidence of the application of blunt force to the victim. His chest and back were bruised, and the internal examination revealed hemorrhaging in superficial layers of the skin in that area. Dr. Nataragon later opined that the injuries were consistent with the decedent being struck while supine on a hard surface. The internal findings disclosed that the victim's liver suffered significant damage due to years of alcohol abuse. The extent of liver damage was such that there was a deficient clotting mechanism so that blood clots did not form sufficiently to prevent the victim's brain injury and death. Moreover, the extent of alcohol abuse contributed to a thinned skull bone, which made the victim more susceptible to brain injuries. Notably, at the time the autopsy was performed, two days after death, the victim had a high blood alcohol reading of.259. Dr. Nataragon's conclusion was that the cause of death was blunt force trauma to the face resulting in acute subdural hematoma and cerebral contusions.
Clifton detectives returned to Headquarters on July 13, 1999, and interviewed those at the scene. Defendant's name along with that of Marek Z. Malinowski were mentioned. Later that day police located them in Passaic, and both agreed to meet with Detective Donato at the Clifton Police Department. When the men arrived, Donato explained to them that a translator was on the way. However, he said both men were very insistent on speaking"right then and there." Donato then told them separately that he was trying to get information about the death of their friend, Jan.
Defendant told Donato he wanted to clear his name and said he met Malinowski on July 10 between 11:00 a.m. and noon under the Ackerman Avenue bridge in Clifton where they began drinking vodka. That afternoon between 4:00 and 5:00 p.m. they went to Headquarters. They met Stefan Radecki and Mikolaj Szakalis and continued drinking. Shortly thereafter, the victim joined the group. Defendant said that the victim had fresh bruises on the left side of his face caused by a brief fight with Szakalis over vodka. Defendant said he attempted to clean off the victim's bloodied face and for this reason some of the victim's blood may have smeared on the shorts he was wearing.
The defendant admitted after the victim accused him of stealing a radio, he slapped the victim with his open left hand twice on the right side of the face. He denied that he caused any injury to the victim during the altercation. He said he left the area with Malinowski soon afterwards, visited go-go bars until 2:00 a.m. and smoked cigarettes outside Malinowski's home until 3:00 a.m. He then went to his girlfriend's apartment and passed out. He said the last time he saw the victim was when he left Headquarters in the afternoon, at which time the victim was drinking with Stefan Radecki and Szakalis. He said he learned of the victim's death the following morning.
During his interview with the police, Malinowski essentially corroborated defendant's statement, but did not indicate he witnessed any kind of altercation between the defendant and the victim. He added that just before leaving, he and the defendant helped the then alive victim move to a spot near the river so that he could rest.
When Stefan Radecki was interviewed, he said that he and defendant moved the victim's mattress from the area where the victim usually slept to Headquarters where the men gathered to drink. He said the victim had facial injuries which the men cleaned with vodka. Later the victim ...