On appeal from the Superior Court of New Jersey, Law Division, Morris County, 02-08-1018.
The opinion of the court was delivered by: Newman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Newman, Axelrad and R.B. Coleman.
Defendant Jose Lopez was charged with purposeful/knowing murder, N.J.S.A. 2C:11-3a(1) and 2C:11-3a(2) (Count I); felony-murder, N.J.S.A. 2C:11-3a(3) (Count II); and robbery, N.J.S.A. 2C:15-1a (Count III).
The jury found defendant not guilty of purposeful/knowing murder, but found him guilty of the lesser-included offense of reckless manslaughter, under Count I, found him not guilty of felony-murder under Count II, and found him guilty of robbery under Count III. The trial court sentenced defendant to consecutive nine-year terms of imprisonment for reckless manslaughter and robbery with eighty-five percent parole disqualifiers on each Count. Defendant appeals. We vacate the sentence on reckless manslaughter and remand for resentencing. We reverse the robbery conviction and remand for entry of a conviction on the third-degree offense of theft from the person and sentencing on that charge.
The relevant facts may be summarized as follows. On the evening of March 16, 2002, defendant, a 5' 4", 140 pound, twenty-three year old, went to the Bassett Pub in Dover Township, where he met up with the victim, Luis Rendon, who was 5' 2", 202 pounds, and forty-three years old. Rendon bought defendant a drink and a round of drinks for the entire bar. Rendon and defendant chatted and their discussion turned to the subject of sex. Rendon offered to pay defendant for sex. Rendon suggested that they have sex by the nearby railroad tracks. Rendon then put his legs on defendant's legs and held his hand. Upset that Rendon offered to pay him for sex, defendant left the bar. Rendon followed him out and engaged defendant in further conversation. Defendant agreed to take a taxi with Rendon to another bar, the Unique Bar & Grill in Dover.
They remained at the Unique Bar drinking until it closed. Rendon again paid for their drinks and suggested they go to the railroad tracks to have sex. Defendant got angry at one point when Rendon kissed him in front of other patrons. Eventually, defendant acquiesced to Rendon and agreed to have sex with him.
When they left the bar, the pair walked towards the train tracks off Blackwell Street. Rendon unzipped his pants and again asked defendant to have sex. According to defendant, Rendon told him that he was either going to have sex voluntarily or be forced. Rendon then asked defendant to give him oral sex. Defendant got mad and the two got into a heated argument. As defendant turned to leave, Rendon grabbed him and turned him around. Defendant pushed Rendon to the ground. Rendon got up and charged defendant, and they both fell to the ground wrestling. They rolled down the embankment to the nearby Rockaway River. When they got to the bottom of the embankment, the two got up and traded punches. Rendon lunged at defendant and defendant struck Rendon in the throat with a karate chop using the side of his hand.
Rendon grabbed his throat, fell face down in the water, and was flailing his arms. As Rendon struggled in the water, defendant took his wallet from his back pocket and opened it. Finding no money, defendant stole Rendon's necklace chain from around his neck. Rendon had $905 in a back pocket which was not taken. Defendant left Rendon face down flailing and gasping for air in twenty inches of water and walked home to his nearby residence.
Defendant took off his soaked clothing before entering his house. The next morning defendant put his clothing from the night before in a garbage bag and discarded it in a dumpster behind the Main Street Bar & Grill on East Blackwell Street. That morning, the Dover police received a 9-1-1 call reporting Rendon's dead body in the Rockaway River. The police found a gold hoop earring by the railroad tracks and Rendon's wallet by his body.
Rendon's autopsy revealed scrapes and bruises on his forehead, nose, lips, neck, back, hands and legs. The fatal injuries were to Rendon's throat and neck. The hyoid bone in Rendon's throat was fractured, and his Adam's apple was split. The combination of these injuries prevented Rendon from calling out for help and compromised his breathing. The cause of death was determined to be blunt trauma to the neck and immersion in water. Hypothermia may have also played a role.
Defendant became a suspect after Angela Guridy, owner of the Unique Bar, told the police that she had seen Rendon with a man fitting defendant's description on the night Rendon was killed.
On March 21, 2002, the Dover police went to defendant's place of employment, the Sparta Car Wash, to speak with him. The police noticed that he wore an earring identical to one found at the crime scene. Defendant agreed to accompany the police to the station for an interview. During the ride to Dover, Captain Peter Ugalde advised defendant of his rights in both Spanish and English. At the police station, the police again advised defendant of his rights which defendant acknowledged at 10:30 a.m.
Detective Robert Meoqui of the Prosecutor's Office interviewed defendant. He readvised defendant of his rights and defendant agreed to speak with him. Defendant also consented to a videotape interview. Defendant told the police on videotape that after they left the second bar, Rendon told him that if he did not "make love to him then he was going to make it to me. Even if I had to be dead." Defendant reiterated that Rendon had grabbed him by the neck and started punching him, eventually causing both of them to fall down the embankment into the river. Defendant admitted to delivering a blow to Rendon's neck with the edge of his hand. After Rendon fell face down into the water, defendant claimed that he tried to pull him out of the water, but Rendon was too heavy. Defendant then admitted to taking a necklace chain and Rendon's wallet while Rendon was still struggling in the water. Defendant told the police where he had discarded the clothing he wore at the time of the incident. Defendant was arrested at the end of the videotape interview.
Subsequently, the police recovered from the dumpster behind the Main Street Bar & Grill defendant's clothing still soaking wet in a garbage bag. The police also searched defendant's house and found Rendon's gold chain with a medallion of the Virgin Mary in defendant's drawer. The earring found at the scene of the homicide was identified as defendant's.
On appeal, defendant raises the following issues for our consideration:
POINT I: THE TRIAL COURT'S CHARGE TO THE JURY REGARDING ROBBERY WAS MISLEADING, AMBIGUOUS AND FATALLY DEFECTIVE BY EXPANDING THE SCOPE OF ROBBERY TO INCLUDE THEFT FROM THE PERSON.
POINT II: THE TRIAL COURT'S RESPONSE TO THE JURY'S QUESTIONING DURING DELIBERATIONS REGARDING ITS APPARENT CONFUSION OVER THE EXPANDED ASPECT OF THE COURT'S ORIGINAL CHARGE REGARDING ROBBERY AND THEFT FROM THE PERSON WAS INAPPROPRIATE, NON-RESPONSIVE AND ERRONEOUS IN NATURE. (PARTIALLY RAISED BELOW)
POINT III: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING COUNT III CHARGING ROBBERY.
POINT IV: THE JURY'S VERDICT REGARDING COUNT III WAS INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE.
POINT V: THE NINE YEAR TERMS IMPOSED ON COUNTS I AND III ARE UNCONSTITUTIONAL SINCE THEY EXCEED THE MAXIMUM SENTENCE ...