On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Burlington County, 01-05-0600.
Before Judges Kestin, Lefelt and Alley.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant, John A. Denofa, was charged with and convicted of a single count of murdering Rachel Siani. See N.J.S.A. 2C:11-3a(1) and (2). He was sentenced to a life-term of imprisonment with thirty years of parole ineligibility.
On appeal, defendant raises the following issues:
POINT I THE COURT'S FAILURE TO INSTRUCT THE JURORS REGARDING JURISDICTION, AN ESSENTIAL ELEMENT OF THE OFFENSE, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10. (Not Raised Below)
POINT II THE TRIAL COURT ERRED BY ADMITTING THE IMPRESSIVELY SUGGESTIVE IDENTIFICATIONS OF THE DEFENDANT INTO EVIDENCE.
POINT III THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF AGGRAVATED MANSLAUGHTER CONSTITUTED A VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10. (Not Raised Below)
POINT IV THE SENTENCE IMPOSED BY THE TRIAL JUDGE IS EXCESSIVE AND INAPPROPRIATE UNDER THE MANDATE OF THE CODE OF CRIMINAL JUSTICE.
We discern no error in the trial court's ruling that the out-of-court and in-court identifications of defendant by a police officer were admissible. Those identifications were not tainted by impermissibly suggestive processes. See Neil v. Biggers, 409 U.S. 188, 196-99, 93 S.Ct. 375, 380-82, 34 L.Ed. 2d 401, 409-11 (1972); State v. Santoro, 229 N.J. Super. 501, 504 (App. Div. 1988); State v. Bono, 128 N.J. Super. 254, 262 (App. Div.), certif. denied, 65 N.J. 572 (1974). The jury was properly instructed on the issue.
We also reject the argument, advanced for the first time on appeal, that defendant was entitled to a lesser-included aggravated manslaughter charge notwithstanding his strongly articulated objection to such a charge when the State requested its inclusion. There was no error in the trial court's evaluation of this issue, either, let alone plain error. See State v. Jenkins, 178 N.J. 347, 358-61 (2004); State v. Brent, 137 N.J. 107, 113-16 (1994).
We have determined, however, that, given certain critical facts established in the proofs, the trial judge's omission to charge the jury on the element of territorial jurisdiction was plainly erroneous. Accordingly, we reverse and remand for a new trial.
In March 2000, Siani, twenty-one-years old, was a college student, working as an exotic dancer at Diva's International Gentlemen's Club in Levittown, Pennsylvania. An Econo Lodge motel was connected to Diva's. The two establishments shared an adjacent parking lot.
Defendant was a regular customer at Diva's, present almost every Tuesday night after playing pool. He was friendly with all of the dancers at Diva's, including Siani. He was regarded as a generous tipper who bought the dancers drinks and sometimes took them out to eat.
Defendant frequently stayed overnight at the Econo Lodge rather than risk driving home from Diva's when he was tired or intoxicated. His driver's license had been suspended on one occasion for driving while under the influence. At times, Siani also stayed at the Econo Lodge if she had consumed too much alcohol.
William Love, a co-owner of Diva's and its director of operations, occasionally gave defendant drinks and cigars without charge, as well as vouchers for a discount rate at the Econo Lodge. He remembered seeing defendant"[b]uzzed," but never intoxicated.
On Tuesday, March 28, 2000, Siani worked the 4:00 p.m. to 10:00 p.m. shift at Diva's. Defendant was a customer that evening. Love, who was working that night, saw defendant and Siani sitting together at the bar during Siani's shift, talking to each other.
Buffy Varanese, an exotic dancer on the 9:00 p.m. to 2:00 a.m. shift that evening, first observed defendant shortly after 9:00 p.m. sitting at his usual spot at the bar. Varanese had known defendant as a customer of Diva's for about one-and-a-half years.
After Varanese finished her first dance set on stage, she walked around the bar to collect her tips and saw Siani and defendant sitting at the bar together, talking. Varanese joined them at the bar at about 9:30 p.m. and spoke with them for twenty to thirty minutes. Although defendant was drinking, he did not appear intoxicated. Defendant asked Siani to accompany him to Sportsters Bar in Falls Township, Pennsylvania to see Michelle Bupp, a former dancer at Diva's, then employed by Sportsters as a bartender. Siani refused, explaining that she was too tired. According to Varanese, defendant seemed upset with Siani's refusal.
Defendant left between 10:00 p.m. and 11:00 p.m., telling Varanese that he planned to go to Sportsters and return to Diva's later that night. Siani, having ended her shift, then went to the dressing room and changed her attire before leaving the premises.
Defendant checked into the Econo Lodge motel at 11:16 p.m. Diane Crouch, who had been the night auditor at the Econo Lodge since August 1999, knew defendant as a customer of the motel and recalled checking him in that night, into room 223 on the second floor. Crouch estimated that she had checked defendant into the motel between fifteen and twenty times while working the overnight shift from 11:00 p.m. to 7:00 a.m. Crouch was the only employee on duty during this shift. She had never seen defendant visibly intoxicated, including on the date in question.
Michelle Bupp recalled that defendant arrived alone at Sportsters Bar between midnight and 12:30 a.m. on March 29. Defendant"seemed to be all right." They engaged in"normal" conversation while she worked and defendant consumed a few drinks. Bupp felt that defendant had had enough to drink at that point and should not drive. After she closed her bar, Bupp sat and spoke with defendant for awhile. Defendant told Bupp that he had taken a taxi to Sportsters and he intended to stay at the Econo Lodge that night. When defendant was unable to get a taxi back to the Econo Lodge, Bupp offered to drive him there on her way home. They left Sportsters at about 1:45 a.m. for the fifteen-minute drive to the Econo Lodge.
According to Bupp, she dropped defendant off at his red pick-up truck at about 2:00 or 2:15 a.m. He did not stumble or weave as he walked from the truck to the main entrance of the Econo Lodge.
At about the same time, Crouch, who had not seen defendant since he had checked into the Econo Lodge earlier that night, saw defendant through the lobby windows walking quickly across the fully illuminated parking lot. Defendant came around from the side of the Econo Lodge and headed towards the Diva's area of the parking lot. She thought it"rather odd" that defendant was in the parking lot at that time of night since, on other occasions, she had rarely seen him after he had checked in. Crouch acknowledged that she had no way of knowing whether defendant was accustomed to entering and leaving the Econo Lodge by using the rear doors rather than the front lobby. The room keys issued to guests provided access to the Econo Lodge through the rear doors.
In the meantime, Siani had returned to Diva's about 1:30 a.m. She was alone and did not appear to be under the influence of anything; however, according to Love, she seemed flustered and in a hurry. She walked into Love's office and asked if she could have a drink. Love refused the request because"last call" had already been announced.
Rebecca Yavorsky, a friend of Siani's who also worked as a dancer at Diva's, left the club that night between 2:15 and 2:30 a.m., accompanied by Siani and a bouncer named Doug. Siani went to her car parked in the lot, and dropped off her purse and a bag of food from Diva's. Doug then escorted the two women to Yavorsky's car, parked in the lot about five or six spaces from the front entrance of Diva's.
Siani accepted Yavorsky's invitation to"hang out" together in Yavorsky's car before going home. They sat in Yavorsky's silver Mustang for about thirty minutes, talking and smoking marijuana. Yavorsky noticed that Siani was holding keys on a lime-colored keychain and on a butterfly keychain. Siani was unhappy because she had wanted to"hang out" with Ken Shank, a disc jockey at Diva's, but he did not want her ...