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State v. Nayee

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 5, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANIL NAYEE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-01-00032.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:

POINT I:

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 BASIS FOR SUCH AN INSTRUCTION (PARTLY RAISED BELOW).

POINT II:

THE COURT ERRED WHEN IT REJECTED DEFENDANT'S REQUEST TO CHARGE THE JURORS THAT THEY WERE NOT TO BE CONCERNED ABOUT ANY DANGER TO THE COMMUNITY THAT THE DEFENDANT MIGHT POSE IF THEY WERE TO FIND THAT HE WAS NOT GUILTY BECAUSE HE SUFFERED FROM A DIMINISHED CAPACITY.

POINT III:

DEFENDANT WAS DENIED DUE PROCESS, A FAIR TRIAL AND THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL ALLOWED HIM TO APPEAR IN PRISON GARB.

POINT IV:

BECAUSE THE COURT FAILED TO APPLY SIGNIFICANT MITIGATING FACTORS THAT WERE SUPPORTED BY THE RECORD, THE SENTENCE SHOULD BE REDUCED TO THIRTY YEARS.

Defendant also raises the following additional arguments in a separate, supplemental pro se brief:

SUPPLEMENTAL POINT I: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO TRIAL BY JURY UNDER THE SIXTH AMENDMENT AND FOURTEENTH AMENDMENT DUE PROCESS CLAUSE OF THE FEDERAL CONSTITUTION, TOGETHER WITH ARTICLE 1, PARAGRAPH 8, ARTICLE 1, PARAGRAPH 9, ARTICLE PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION BASED UPON THE TRIAL COURT ERRONEOUSLY FAILING TO INSTRUCT THE JURY WITH RESPECT TO THE STATE'S BURDEN OF PROOF OF AN ESSENTIAL ELEMENT OF THE OFFENSE.

SUPPLEMENTAL POINT II: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO TRIAL BY JURY UNDER THE SIXTH AMENDMENT AND FOURTEENTH AMENDMENT DUE PROCESS CLAUSE OF THE FEDERAL CONSTITUTION, TOGETHER WITH ARTICLE 1, PARAGRAPH 8, ARTICLE 1, PARAGRAPH 9, ARTICLE PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION BASED UPON FACTS NEVER SUBMITTED TO THE GRAND JURY AND RETURNED IN THE INDICTMENT, NOR FOUND BY THE JURY AT TRIAL AND PROVEN BEYOND A REASONABLE DOUBT.

We find the arguments raised in defendant's supplemental pro se brief are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Regarding defendant's argument that the court erred in failing to instruct the jury that it could convict defendant of manslaughter as a lesser-included offense of murder, we recognize that "where the facts on the record would justify a conviction of a certain charge, the people of this State are entitled to have that charge rendered to the jury, and no one's strategy, or assumed (even real) advantage can take precedence over that public interest." State v. Powell, 84 N.J. 305, 319 (1980), certif. denied, 87 N.J. 332 (1981). See also State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.), certif. denied, 188 N.J. 489 (2006); State v. Messino, 378 N.J. Super. 559, 581 (App. Div.), certif. denied, 185 N.J. 297 (2005). "[E]ven in the absence of a request, . . . 'a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.'" State v. Thomas, 187 N.J. 119, 132 (2006) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). See also N.J.S.A. 2C:1-8e. "Conversely, a trial 'court ha[s] no duty to instruct the jury sua sponte on [an included offense charge if] the evidence [does] not clearly indicate or warrant such a charge.'" Thomas, supra, 187 N.J. at 132 (quoting State v. Savage, 172 N.J. 374, 401 (2002)) (bracketed material in original).

Prior to the presentation of closing arguments in this case, the court inquired of the attorneys whether they wanted an instruction on aggravated manslaughter submitted to the jury. The prosecutor responded, "I am not specifically requesting but . . . I think the court's required to charge it." Counsel for defendant took the opposite position, suggesting there was no basis in the record for a charge on lesser-included offenses. After the following exchange, the court agreed with defense counsel:

DEFENSE COUNSEL: On manslaughter, Judge, the first time the word reckless was ever mentioned in this case was just now when [the prosecutor] utilized that word. I submit it is not the State's theory. It is not the defense's theory. There has been no testimony about recklessness. There has been no evidence from where anyone could reasonably infer that this was anything other than murder, if they find it is murder. The State did not open to the jury in anything other than murder. Did not examine any of its witnesses in such a way, nor any of its experts. Actually there is no basis in light of the mental health defense the jury was not given any guidance.

The prosecutor didn't ask whether someone could act reckless to his expert nor that is a theory that the prosecutor attempted to advance. And I would submit that there is no basis in the record to charge a lesser included offense.

THE COURT: Do you have anything further on that, [Mr. Prosecutor]?

PROSECUTOR: No, Judge, I stand on my position on that.

THE COURT: I concur with [defense counsel] in that there is no rational basis in the evidence presentation that was in court*fn1 an aggravated manslaughter charge as a lesser so I will not charge that.

Pursuant to N.J.S.A. 2C:11-3a, "criminal homicide constitutes murder when: (1) [t]he actor purposely causes death or serious bodily injury resulting in death; or (2) [t]he actor knowingly causes death or serious bodily injury resulting in death[.]" By comparison, "[c]riminal homicide constitutes manslaughter when . . . [i]t is committed recklessly[.]" N.J.S.A. 2C:11-4b(1). Pursuant to N.J.S.A. 2C:11-4a, "[c]riminal homicide constitutes aggravated manslaughter when [] the actor recklessly causes death under circumstances manifesting an extreme indifference to human life[.]"

In its opinion in State v. Jenkins, the Supreme Court reiterated the distinctions between murder and manslaughter as follows:

Thus, the following key distinctions emerge. To be guilty of SBI [serious bodily injury] murder, the defendant must have knowingly or purposely inflicted serious bodily injury with actual knowledge that the injury created a substantial risk of death and that it was "highly probable" that death would result. In aggravated manslaughter, by contrast, the defendant must have caused death with an "awareness and conscious disregard of the probability of death." If, instead, the defendant disregarded only a "possibility" of death, the result is reckless manslaughter. [Jenkins, supra, 178 N.J. at 363 (emphasis in original) (citations omitted).]

At trial, defendant did not deny the homicidal act, that is, that he inflicted injuries that caused the death of Ann Mendez. Instead, defendant advanced alternative defenses of insanity, N.J.S.A. 2C:4-1, and diminished capacity, N.J.S.A. 2C:4-2, stating that due to a mental disease defect, his conduct should be excused or that it negated the intent required for murder.

Respecting the insanity defense, N.J.S.A. 2C:4-1 provides:

A person is not criminally responsible for conduct if at the time of such conduct he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Insanity is an affirmative defense which must be proved by a preponderance of the evidence.

Diminished capacity, which is addressed in N.J.S.A. 2C:4-2, provides:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense.

The Supreme Court observed in State v. Delibero, 149 N.J. 90, 92-93 (1997), "Diminished capacity describes a disease or defect of mind that may negate the mental state that is an element of the offense charged. The insanity defense exculpates an actor from guilt for conduct that would otherwise be criminal."

Thus, the proofs would have allowed the jury to find either that defendant acted out of jealousy, as the State urged, or that he obeyed the voices in his head, and as Dr. Latimer testified, his was a "sudden impulsive homicidal act." If the jurors rejected the validity of the mental defense, they could find he acted purposely or knowingly; it was murder. If, however, they found defendant had a mental disease or defect that prevented him from acting purposely or knowingly, they could conclude either that (a) the State failed to prove that defendant could understand it was wrong to kill Mendez -- he was not guilty by reason of insanity -- or (b) it failed to prove defendant could form the requisite state of mind for murder. There was, however, no evidence in the record that defendant's act was committed recklessly or in the heat of provocation or passion. N.J.S.A. 2C:11-4b(1) and (2).

Defendant, through counsel, specifically requested that the charge on aggravated manslaughter not be given, and while "no defendant should be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense," O'Carroll, supra, 385 N.J. Super. at 224, a charge on a lesser-included offense must be given only if the evidence clearly supports it. In other words, the facts must "clearly indicate a jury could convict on the lesser while acquitting on the greater offense." Thomas, supra, 187 N.J. at 132 (citation and internal quotation omitted). That was not shown in this instance.

State v. Jenkins is factually distinguishable. There, the defendant "bashed" the victim in the head with a brick causing him to fall down a flight of stairs headfirst to the pavement below. Jenkins, supra, 178 N.J. at 355. According to autopsy evidence, the blow from the brick likely caused the victim to lose consciousness, but he ultimately died from the skull and brain injuries resulting from his fall to the pavement. Id. at 354. At trial, "defendant argued against instructing the jury on lesser-included offenses pertaining to homicide, preferring to gamble with an all-or-nothing approach on the murder charge." Id. at 356. As here, the State argued the lesser-included offenses should have been charged. Ibid. Following his conviction for murder, defendant argued that, notwithstanding his request at trial, the court erred in failing to instruct on the lesser-included offenses of reckless manslaughter and aggravated manslaughter. Id. at 357.

In its review, the Supreme Court first rejected the notion that defendant's reversal of position was precluded by the doctrine of invited error or judicial estoppel, reasoning instead that the trial court had independently arrived at its decision not to instruct on the lesser-included offenses. Jenkins, supra, 178 N.J. at 360-61. In other words, the trial court had acceded to defendant's request, without having been manipulated or misled into error. The trial court had recognized defendant's tactical reasons for requesting an allor-nothing charge, but it had made its decision on the basis of its belief that "there [was] no way that the jury could find reasonably that the striking of this person was done in anything other than purposeful, knowing, intentional manner." Id. at 360. The Court concluded, however, that the trial court's limited focus on the purposeful, knowing and intentional nature of defendant's striking of the victim was error:

Instead, the proper inquiry in distinguishing murder from the two degrees of manslaughter relates to defendant's state of mind as to the risk of death. A jury could have concluded that defendant struck Thomas in order to kill him or with knowledge that death was certain or highly probable. However, the facts indicate that the jurors also could have rationally concluded that defendant struck the victim not knowing that serious bodily injury would result in the victim's death, or not knowing that the injury created a substantial risk of death and that it was highly probable that death would result. That is, the jurors could have found that defendant consciously disregarded a known risk that created the possibility or probability that death would follow from his conduct. [Id. at 363-64.]

In this case, the trial court focused upon the effect of defendant's ability to appreciate the nature of his conduct or to form the necessary intent for the crime charges.

Also, in O'Carroll, we reversed defendant's conviction of first degree murder, and remanded the matter for a new trial, concluding that it was plain error for the court to omit instructions that would have allowed the jury to consider the lesser-included offenses of aggravated and reckless manslaughter, as well as the justification of self-defense. O'Carroll, supra, 385 N.J. Super. at 217. In that case, defense counsel had requested that the court instruct the jury only on murder and passion/provocation manslaughter, but had acknowledged that "a jury could find that the time period between [the victim's] loss of consciousness and irreversible death involve[d] a conscious disregard of a substantial and unjustified risk that death could have either possibly resulted or probably resulted." Id. at 225. There, a factual basis for the charge of manslaughter was apparent, and defendant contended on appeal that, in the statement he gave to the police, he had said he and the victim had been involved in a violent struggle in which the defendant thought the victim was about to stab him. Defendant also contended on appeal that he accidentally wrapped a telephone cord tight around the victim's neck as he attempted to make her drop the knife. Id. at 229. Thus, a jury could have concluded the defendant in Carroll began choking the victim only to prevent her from stabbing him and without intending the pressure he applied to her neck or the length of time he applied that pressure would result in her death. Id. at 229-30.

By contrast, in the context of the defense strategy in this case, defendant contends he killed Mendez out of obedience to the commanding voices. He was not acting out of self-protection and did not contend that her death was not the intended or expected result of his act. He conceded he caused the death of Mendez, but argued that he was not capable of murder because of his mental disease or defect. Because the record is devoid of the details of the killing, we cannot conceive that a jury could rationally acquit defendant of the murder charge but find him guilty of aggravated manslaughter. Reviewing the ruling under the plain error standard, whereby it will not be overturned unless it is "clearly capable of producing an unjust result," R. 2:10-2, we find no basis to disturb the trial court's decision not to include an aggravated manslaughter charge.

Defendant now contends he was denied effective assistance of counsel. In order for defendant to prevail on his claim of ineffective assistance of counsel, he would have to show that his counsel's performance was deficient and that counsel's deficiency actually prejudiced the accused's defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Defendant was represented by experienced counsel. In reviewing claims of ineffective assistance of counsel, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Moreover, the record is not sufficiently developed for us to address adequately the decision making of counsel in formulating the trial strategy that was employed. Consequently, the asserted claim of ineffective assistance of counsel is better suited for post-conviction review. State v. Preciose, 129 N.J. 451, 460 (1992).

Defendant also argues that the court erroneously declined to charge the jurors that they were not to concern themselves with any danger that defendant might pose to the community should they find him not guilty due to diminished capacity. Included in the charge was the following:

A verdict of not guilty by reason of insanity does not necessarily mean that the defendant will be freed or that the individual will be indefinitely committed to a mental institution. Under our law if you find the defendant not guilty by reason of insanity, it will then be for the Court to conduct a further hearing and among other matters, determine whether or not the defendant's insanity continues to the present and whether the defendant poses a danger to the community or himself. The resolution of those issues will ultimately determine what appropriate restrictions need to be placed on the defendant. Thus, procedures exist to adequately provide for the defendant and to protect the public in the event the defendant is found not guilty by reason of insanity.

The court properly declined to give such a charge with regard to diminished capacity. The insanity charge given by the court is required under State v. Krol, 68 N.J. 236 (1975). A successful insanity defense triggers direct consequences, which include court-ordered evaluations and institutionalizations and reviews. These consequences are a part of the criminal justice system, and the jury should be made aware of them. As we have noted above, a diminished capacity defense "may negate the mental state that is an element of the offense charged." Delibero, supra, 149 N.J. at 92. The Delibero Court explained:

The consequences of a verdict of insanity differ from one of diminished capacity. A judgment of not guilty by reason of insanity does not result in a defendant being set free; rather, the defendant is subject to further commitment proceedings. A judgment of not guilty because of the defendant's diminished capacity does result in a defendant being set free. [Id. at 104-05 (citations omitted).]

Consequently, there was no reason for the judge to comment on any danger defendant might or might not pose to the community by reason of any alleged diminished capacity and certainly no reason to suggest that such a commitment proceeding would be instituted against defendant. The judge correctly declined to charge the jury on some future event that might never occur.

Defendant also contends on appeal that he was denied a fair trial because he appeared in prison garb throughout the trial. Before voir dire, the State informed the judge that defendant did not have any civilian clothing. Upon inquiry, defense counsel stated that he had no objection to defendant appearing in prison garb because the jury would, in any event, learn from the medical records that defendant was incarcerated. Consequently, counsel was not concerned about prejudice as a result of the jury's awareness of defendant's incarceration.

We have previously declared that it is the responsibility of the judge to question criminal defendants on the record "concerning their desire to relinquish the right to appear in civilian clothing," and to accept this waiver only through "a knowing, intelligent and voluntary waiver on the record. . . ." State v. Carrion-Collazo, 221 N.J. Super. 103, 112 (App. Div.), certif. denied, 110 N.J. 171 (1988). The presumption against a defendant appearing in prison garb exists because it "'may affect a juror's judgment,' [it] 'furthers no essential state policy' and [it] 'operates usually against only those who cannot post bail prior to trial.'" Id. at 109 (quoting Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1619, 1693, 48 L.Ed. 2d 126, 131 (1976)).

The case law has further evolved to the extent the Supreme Court has directed that even defense witnesses should not testify in prison garb and that corrections authorities must supply incarcerated defense witnesses with civilian clothing. State v. Artwell, 177 N.J. 526, 534-35 (2003). Furthermore, such clothing must be of reasonable size, cleanliness and quality "as to not have the potential to diminish [defendant's] credibility before the jury." State v. Herrera, 385 N.J. Super. 486, 499 (App. Div. 2006). These requirements were established because "the trial court is responsible for assuring that the presumption of innocence is not lost at any stage in the proceedings because of extraneous, impermissible factors such as defendant's physical appearance." State v. Maisonet, 166 N.J. 9, 22 (2001).

Defendant now contends that he was denied a fair trial because his counsel allowed him to appear in prison garb and he now speculates that could have led the jury to believe that he was incarcerated because he was still dangerous. While we are concerned that the judge did not address defendant personally, did not address defendant's prison garb during voir dire, and did not provide cautionary instructions to the jury, we are convinced that defendant acquiesced in his attorney's representations to the court. More fundamentally, we do not perceive, under facts of this case, that these actions deprived defendant of a fair trial.

First, defendant did not deny that he killed Mendez, and thus defendant's culpability was not at issue, except to the extent it might have been "excused" or negated by reason of his mental state. Second, as noted, the safeguards regarding a defendant's dress and appearance are implemented to ensure that the presumption of innocence is not lost. Since defendant conceded that he committed the homicidal act charged, the presumption of his innocence was not tainted or lost by his wardrobe. The critical issue in contention related to his state of mind, and that turned primarily on the testimony of the expert and treating mental health specialists.

The requirement that the court personally address a defendant on the record regarding the decision to wear prison garb and give a cautionary instruction to the jury serves an important function in safeguarding a defendant's presumption of innocence, especially where that defendant chooses to testify, and we agree it was error for the judge not to insist upon adherence in this instance. Nevertheless, because defendant did not testify and because his conduct was not at issue, the error, allowing defendant to appear in prison garb, did not, in our opinion, have the capacity to bring about a result that was unjust.

As with the failure to request a charge on the lesser-included offense of aggravated manslaughter, defendant's charge of ineffective assistance of counsel on this point is not a matter that can be resolved on the record on direct appeal. It is more appropriately addressed, if at all, on a petition for post-conviction review.

Finally, defendant challenges his sentence, arguing it is excessive and that the court considered inappropriate aggravating factors and failed to find applicable mitigating factors. When reviewing a sentence on appeal, we consider whether the sentencing judge's findings of fact are "grounded in competent, reasonably credible evidence." State v. Roth, 95 N.J. 334, 363 (1984). In reviewing a sentence, we must make the following determinations: (1) whether the appropriate sentencing guidelines were followed; (2) whether the findings of fact were grounded in competent, reasonably credible evidence; and (3) whether in applying those guidelines to the facts of the case, the sentencing court showed such a "clear error of judgment that it shocks the judicial conscience" that the sentence should be modified on appeal. Id. at 362-65. If the sentencing judge reasonably weighed the aggravating and mitigating factors, we will not disturb the sentence.

In sentencing defendant, the court found the following aggravating factors: the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1); risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). The court also found that defendant's lack of a prior criminal history constituted a mitigating factor, N.J.S.A. 2C:44-1b(7); however, defendant argues the court improperly failed to find the following additional mitigating factors: that there were substantial grounds which tended to excuse defendant's conduct, N.J.S.A. 2C:44-1b(4); that the circumstances were unlikely to recur, N.J.S.A. 2C:44-1b(8); and cooperation with law enforcement, N.J.S.A. 2C:44-1b(12). We are reminded that "[w]e must avoid the substitution of appellate judgment for trial court judgment." Roth, supra, 95 N.J. at 365. Here, we perceive no basis to disturb the court's determination.

The court noted the extent of defendant's cooperation was to contact his lawyer after driving around all night with Mendez' body in his car and after apparently attempting to take his own life. Furthermore, the court, based on the jury's rejection of defendant's insanity/diminished capacity defense, was well within its discretion to reject it as a mitigating factor for sentencing. Finally, defendant's challenge to the application of aggravating factor (1), the nature of the crime, lacks merit. Defendant, who had a prior romantic relationship with Mendez, slashed and stabbed her with a utility knife, causing her to aspirate and, essentially, drown in her own blood. The judge's decision to apply this factor is grounded in competent, reasonably credible evidence.

Defendant's sentence is severe, but it is not so excessive that it shocks the judicial conscience. Indeed, it is in large part the result of legislative mandate. N.J.S.A. 2C:11-3b(1) authorizes a person convicted of murder a sentence of thirty years during which the person shall not be eligible for parole or a specific term of years between thirty years and life imprisonment of which the person shall serve thirty years before being eligible for parole. Pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, life imprisonment is deemed to be seventy-five years. Here, the court imposed a specific term of years, fifty, and eighty-five percent of that sentence imposed must be served before the defendant shall be eligible for parole. Ibid.

Affirmed.


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