On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-01-00032.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2007
Before Judges Axelrad and R. B. Coleman.
Defendant Anil Nayee appeals from a January 28, 2005 judgment of conviction, entered following a trial by jury for murder, N.J.S.A. 2C:11-3a(1), (2) (count one); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and possession of a prohibited weapon, N.J.S.A. 2C:39-5d (count three). The judge sentenced the defendant to a prison term of fifty years with an eighty-five percent parole disqualifier for count one and merged the two remaining counts into the first. After careful consideration and review of the record, the parties' briefs and the applicable law, we affirm the judgment of conviction and the sentence imposed.
Defendant, an immigrant from India, came to America in 1980 to live with his grandparents. He participated in an arranged marriage that was not fulfilling, but both his parents and his wife's parents forbade a divorce. Nonetheless, defendant began to date Ann Mendez, whom he met while they were both taking college classes at Rutgers University in Newark. Mendez attended the university part-time at night and worked during the day at a bank in Jersey City. Defendant would often pick her up at the end of her work shift, occasionally arriving up to two hours before the end of the shift and waiting for her.
After defendant and Mendez had dated for approximately six months without incident, their relationship apparently faltered. For example, one of Mendez' co-workers noticed that she had bruises on her face, which prompted the co-worker to call defendant and to tell him that if he ever hurt Mendez again, she would tell the police and would help Mendez obtain a restraining order.
In addition, in Spring 2001, after Mendez had changed jobs, she was introduced to Mohammed Gayyoor, who was installing a new computer system at her former bank. While he was working on the project, they saw each other almost every day, and they maintained a long distance relationship when Gayyoor returned to Oklahoma at the completion of the project.
On October 11, 2001, at some point before 6:00 p.m., Mendez and defendant were seen arguing on a street corner in Newark. Mendez was attempting to get to her Accounting Fundamentals class, but defendant blocked her path and would not let her pass. Defendant seemed upset at Mendez and was raising his voice at her. Later, when Mendez finally made it to class, defendant watched her through the window in the door of the classroom. When class was over, around 9:00 p.m., defendant was again seen arguing with Mendez.
Gayyoor, who was familiar with Mendez' class schedule, normally received a call from Mendez during the break and at the end of her class. However, on October 11, 2001, Mendez did not call him. Gayyoor called her cell phone repeatedly, but no one answered the phone. Eventually, he received a call from her phone, but someone other than Mendez was on the line. It was a male, who identified himself as Mendez' ex-boyfriend. When Gayyoor responded that he was her current boyfriend, the caller hung up. Following this exchange, Gayyoor repeatedly called Mendez' cell phone and either no one would pick up or someone would answer and immediately hang up. Later that night, the same male who had called, answered Mendez' phone and told Gayyoor that Mendez was dead. Gayyoor then called Mendez' mother and she called the Jersey City police department and told them her daughter was missing.
On the morning of October 12, 2001, Lieutenant David LaPoint of the Carteret Police Department received a phone call from a local attorney, Louis Kady. Kady asked LaPoint to come to the parking lot of his building on Washington Avenue. Upon his arrival, LaPoint saw defendant in the parking lot near a Mitsubishi automobile, talking on his phone. As he approached, LaPoint noticed dried blood on defendant's hands, pants, undershirt and on his neck. Defendant handed LaPoint his phone and said, "This is my lawyer."
After he arrested defendant, LaPoint looked inside the car where he saw blood on the console and between the two seats. He opened the door, moved a blanket that was in the back seat, and discovered Mendez' body. Thereafter, defendant's clothing was seized as evidence and DNA testing revealed that Mendez' blood was on defendant's shirt and pants. Also seized was a receipt from a Rite-Aid store located on Market Street in Newark, dated October 11, 2001, which detailed the purchase of a utility knife, a screwdriver, and a hammer at 6:23 p.m. that evening. Defendant's vehicle was impounded and, in it, police found a black bag containing a screwdriver, blanket, utility knife and blade. Bloodstains on the knife were determined to be from more than one source. Defendant was the primary contributor to those bloodstains, but Mendez could not be excluded as a partial contributor.
Dr. Geetha Ann Natarajan, the Middlesex County Medical Examiner, testified at trial that she performed the autopsy of Mendez on October 13, 2001. Her examination revealed that Mendez' hands and left arm had been sliced with a knife and that she had been stabbed in the neck. Such wounds could have been caused by the knife found in defendant's possession. Dr. Natarajan was of the opinion the stab wound to Mendez' neck would have caused her to aspirate blood into her windpipe and lungs with each breath, resulting in her death.
On October 16, 2001, defendant was taken from the jail to the emergency room of the mental health center at Robert Wood Johnson Hospital because a medical technician at the jail felt defendant needed to be hospitalized for his own protection.
Based on her observations, the technician noted that defendant had impaired insight, his judgment was grossly impaired, and he claimed he was hearing and seeing God in the room. Following an examination at the hospital by Dr. Waldburg Zomorodi, defendant was involuntarily committed for psychiatric care. Dr. Zomorodi testified at trial that his diagnosis was that defendant was suffering from depression with psychotic features. Dr. Zomorodi opined that, within a reasonable degree of psychiatric certainty, defendant was suffering from a severe mental illness on October 11, 2001, and was probably psychotic that day.
Following his involuntary commitment to the Ann Klein Forensic Center, defendant was prescribed numerous medications. He remained there, under supervision, until October 10, 2002, when he was discharged to the county jail. Upon his discharge, one of his treating physicians diagnosed defendant as suffering from a major depressive disorder and noted that he should continue to receive his antipsychotic medications, antidepressants and mood stabilizers.
Several of defendant's treating physicians testified about their treatment of him while he was at Ann Klein. Also testifying on behalf of defendant was Dr. Robert Latimer, who was qualified as an expert in the area of forensic psychiatry. According to Dr. Latimer, defendant was delusional and hallucinating and he thought that someone on television was discussing him and that God was addressing him. Based on this, Dr. Latimer opined that defendant was depressed with psychotic features and that he was paranoid and heard command hallucinations.
Defendant did not testify in his own behalf at trial, but Dr. Latimer testified about what defendant told him of his relationship with Mendez. As related by defendant, they dated, were sexually intimate, and he wanted to marry her but family pressure would not allow him to divorce his current wife. On the night of the murder, defendant said he heard voices "with compelling force telling him 'kill, kill and you die, die.'" Defendant indicated he had heard such command hallucinations before, but these particular hallucinations were "extremely urgent, extremely compelling." He could not control himself and he began to cut Mendez with the utility knife. Dr. Latimer posited that, as a result of mental disease, defendant could not form the purpose to kill, but rather, he was simply obeying the voices, and that defendant's illness caused "a sudden impulsive homicidal act."
In spite of the defenses relating to defendant's mental condition, the jury returned a verdict finding him guilty of all three counts charged in the indictment.
On appeal, defendant, through counsel, raises the following points of alleged error:
THE COURT ERRED IN FAILING TO INSTRUCT THE JURORS THAT THEY COULD CONVICT DEFENDANT OF MANSLAUGHTER AS A LESSER-INCLUDED OFFENSE OF MURDER, AND DEFENSE COUNSEL WAS INEFFECTIVE IN ARGUING THAT THERE WAS NO ...