On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No.: 03-01-0152.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester, Sabatino and Lyons.
Defendant, Wilbert Brown ("Brown"), appeals his conviction for the December 8, 2001 murder of victim, Altagracia Aponte ("victim" or "Grace"). The following factual and procedural history is relevant to the issues advanced on appeal.
In the early morning hours of December 9, 2001, the body of forty-four year old victim was discovered by a neighbor lying on the grass of the Leonia condominium complex where she lived. Police and EMS arrived and attempted to revive her. She had been shot three times, once in the chest, once in the upper neck, and once directly on top of the skull. She was transported to Englewood Hospital and was pronounced dead.
Defendant resided at the same condominium complex as victim and had been romantically involved with her for four years.
They separated a few months before the murder. On the night that victim's body was discovered, defendant arrived at the crime scene, spoke to Leonia Police Officer Murphy and inquired about the crime. Before the officer made any reply, defendant stated that he had just returned from New York City because he had to water the plants at his mother's apartment. Officer Murphy replied, "who cares," and said nothing else to defendant. He believed that defendant appeared "very nervous" at the crime scene and looked for him after victim was taken to the hospital.
A police investigation commenced and defendant was interrogated on December 9, 2001. During questioning, defendant admitted that he and victim dated, that they mutually separated in July or August 2001 and that he was not angry over the breakup. Defendant stated that he did not follow victim after their separation and that the two had a friendly relationship. Defendant told police that he had last seen victim on Thanksgiving Day but later recalled that two days prior to Thanksgiving, in the early hours of the morning, he had confronted victim near the laundry room of the complex wearing rubber gloves and made derogatory comments to her.
During questioning, defendant stated that on the early afternoon of December 8, 2001, he drove to New York City to have paperwork witnessed for him, returned home to New Jersey, watched television, and later in the evening, returned to New York.*fn1 Defendant explained that he returned to New York City in the evening to pick up a rent check from a friend to whom he had sublet his late mother's apartment, to water the plants and to check on the plumbing. Defendant stated that he left New York City after midnight, returned home, observed the scene at the complex and was told by someone that victim had been shot.
Defendant permitted police to search his automobile, van and apartment. During the search of defendant's automobile, police found an inoperable EZ-Pass in the glove compartment. Police noted that the van was parked near the area where the victim had been murdered. Items seized from defendant's home included a leather holster without a gun, found in defendant's bedroom, and a micro-cassette from his bedroom dresser. Defendant told detectives that he made the tape and "said some bad things about Grace."
On the tape, defendant repeatedly stated that he wanted to resume his relationship with victim, that she rejected him and that he was angered by her courting other individuals. Defendant also expressed that he knew more about her life than she thought he did, described her companions and the vehicles they drove, and noted places she visited. Moreover, the cassette contains several threatening messages, including that victim's "fate was sealed," that she would "have to pay the piper" and that she "will get [her] due."
Witnesses at trial corroborated the messages contained in the cassette. Victim's son testified that victim received hostile phone calls in the evenings and, "more times than not, it was [defendant]." Victim's son also indicated that he received calls from defendant inquiring into victim's whereabouts. In addition, a co-worker of defendant's provided detectives with a notebook defendant had dropped at work which contained two handwritten license plate numbers that referenced vehicles owned by a male companion of victim's, Dr. Robert Gaskin ("Dr. Gaskin").
Dr. Gaskin testified that he occasionally had dinner with victim, that the last time he saw her was on December 7, 2001 and that on this date, she appeared anxious and scared. Victim told Dr. Gaskin that she was thinking about relocating.
During the police investigation, police obtained defendant's mobile phone records. According to the records, a call was made from defendant's mobile phone at 6:19 p.m. on December 8, 2001 near the North Bergen residence of victim's boyfriend, Rafael Perez ("Perez"). At about that time, victim met Perez at his home. The police investigation revealed that victim returned home to the condominium complex between 1:00 to 1:15 a.m. the next morning and was shot shortly thereafter.
Defendant was arrested on November 29, 2002. He was indicted by a Bergen County grand jury and charged with murder, in violation of N.J.S.A. 2C:11-3a(1) (count one) and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a (count two). Trial was held before a jury from October 12, 2004 through October 27, 2004.
At trial, an FBI expert in firearm and toolmark identification testified that the gun housed in the holster taken from defendant's bedroom was a .25 caliber Titan pistol. A Bergen County Sheriff's officer who is an expert in firearm identification testified that such a pistol could have been used to kill the victim. Defendant did not testify at trial.
At the conclusion of trial, the jury convicted defendant on all counts. He was sentenced to a life term on the murder conviction, with a parole bar of thirty years. The court imposed a sentence of seven years with a five-year parole bar on count two as well as a fine of $100,000 and restitution in the amount of $25,000. Four months later, the court entered an amended judgment of conviction including a NERA portion of the life sentence and merged count two into count one. A notice of appeal was filed on defendant's behalf.
On appeal, defendant raises the following arguments for our consideration:
THE TRIAL JUDGE ERRED IN PERMITTING A REFERENCE TO "SEARCH WARRANT" TO BE HEARD BY THIS JURY. (Not Raised Below).
POINT II: THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR A NEW TRIAL AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
THE FINE ASSESSED BY THE TRIAL JUDGE IS EXCESSIVE.
We begin our analysis of the issues presented by addressing the arguments of defendant and the applicable legal standards.
During trial, Sergeant Lynn Morrissey ("Morrissey") of the Bergen County Prosecutor's Office testified that she had been involved in the murder investigation. The prosecutor questioned Morrissey with regard to the officers' search of a jacket ...