On appeal from Superior Court of New Jersey, Law Division, Bergen County, Ind. No. 99-02-0457.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard, Graves and Lihotz.
In a two-count indictment, defendant Jose Luis Rivera was charged with the purposeful or knowing murder of his wife, Amalia Rojas, N.J.S.A. 2C:11-3(a)(1), (2) (count one); and third-degree hindering apprehension by attempting to conceal the victim's body, N.J.S.A. 2C:29-3(a)(3) (count two). On November 14, 2002, a jury found defendant guilty as charged. Defendant was sentenced to serve a term of life imprisonment with thirty years of parole ineligibility on count one. He received a consecutive five-year term of imprisonment on count two. Appropriate penalties and assessments were also imposed.
On appeal, defendant presents the following arguments:
THE COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTER.
THE PROSECUTOR'S MISSTATEMENT IN HIS SUMMATION OF THE LAW ON PASSION/PROVOCATION DEPRIVED DEFENDANT OF A FAIR CONSIDERATION OF THAT OPTION BY THE JURY, REQUIRING REVERSAL OF HIS MURDER CONVICTION. (Not Raised Below.)
THE AGGREGATE LIFE-PLUS-FIVE YEAR TERM IMPOSED ON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE RELEVANT CIRCUMSTANCES.
After reviewing the record and the applicable law, we conclude defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nonetheless, after noting the key facts, we will comment briefly on Points I and II.
The victim, Amalia Rojas, and defendant were married in Mexico in 1983. According to the adult presentence report, three children were born of the marriage. The oldest child resides in Astoria Queens, and the two youngest reside with an aunt in Mexico. In the mid-nineties, Amalia and the children emigrated to the United States, and defendant joined the family in the late nineties.
During September 1998, the timeframe of the murder, defendant, Amalia, and the two youngest children resided in one room of a basement apartment in Queens that they shared with Amalia's seventeen-year-old nephew, Armando Rojas, and a man named David Alvarez. Amalia had married Alvarez after her arrival in the United States.
On Sunday, September 13, 1998, Amalia and defendant left the apartment together, but when defendant returned to the apartment at about 6:00 p.m. that evening, he was alone. He told Armando Rojas that he and Amalia had gone to 42nd Street in New York City, and that "she had gone into the bathroom and hadn't come out."
On Monday, September 14, 1998, at about 7:00 a.m., Pedro Soto arrived for work at the Gilmont Industries distribution warehouse located at 738 Schulyer Avenue in Lyndhurst, New Jersey. After lunch, as part of his duties, Soto drove a forklift to the back of the building in order to retrieve a container. While in this area, Soto noticed "the legs" sticking out from between the building and a 36 x 36 x 24 inch shipping container. When Soto moved a blue plastic container lid that was partially covering the body, he observed an unknown dead woman. Immediately thereafter, Soto notified the police.
Sergeant Brian Callanan of the Bergen County Prosecutor's Office (BCPO) was one of the officers who responded to the scene. Upon his arrival, Callanan noted a ligature around the victim's neck, abrasions on her left arm, and a laceration on her face. These abrasions suggested to him that the body had been dragged.
Dr. Sunandan Singh, the Bergen County Medical Examiner, also came to the scene. Dr. Singh pronounced the woman dead at 2:45 p.m., and based on his evaluation of the body at the scene, he opined that the woman had died between 2:00 p.m. and midnight the previous day.
A search of the area around the body did not result in any identification for the victim but did reveal several yellow grocery-type plastic bags. It was later learned that these bags originated from a grocery store in Queens.
Further investigation revealed that a man named Jorge Onofre had brought a group of men from Queens to the Gilmont Warehouse to assist with the task of cleaning out the warehouse. This crew had worked at the warehouse about six weeks earlier. The police obtained a list of the workers that Onofre had brought to the site. Defendant and Armando, the victim's nephew, were both on the list of individuals who had previously worked at the warehouse.
On the following evening, Tuesday, September 15, 1998, officers from the BCPO went to Queens to question defendant and some of the other individuals who had worked at the Lyndhurst warehouse. The police were especially interested in defendant because they had learned, through another worker, that defendant's wife had been missing since Sunday, September 13, 1998.
Shortly before midnight on September 15, Detective Joseph Macellaro of the BCPO and Detective Peter Ortega of the New York city Police Department went to defendant's residence, Apartment 9B at 2513 31st Avenue, Astoria, Queens. When defendant opened the door, Detective Ortega, acting as interpreter, informed defendant they wanted to speak with him regarding his wife's disappearance and asked to see a photograph of her. Defendant produced his wife's passport and agreed to accompany the officers to the precinct. The officers transported defendant and Armando to the local precinct.
At the precinct, defendant and Armando were interviewed separately, and after he was advised of his Miranda*fn1 warnings, defendant agreed to speak with the police. Initially, defendant told police his wife and David Alvarez had argued on Sunday, and she had "stormed out" of the apartment and had not returned. Afterwards, he had searched for her by bicycle, but had been unable to locate her. Defendant explained he did not report his wife missing because he assumed she would return on her own.
Detective Macellaro told defendant he did not believe him. In response, defendant stated his wife had been out drinking all night, before returning home early in the morning. He also indicated he had an argument with her that almost turned physical, but her nephew Armando interceded. Defendant told Detective Macellaro that his wife had also argued with David Alvarez and, thereafter, she "stormed out" of the apartment and had not returned.
Macellaro told defendant they had discovered a woman's body behind the warehouse in Lyndhurst where defendant had worked, and they believed it to be his wife. According to Macellaro, defendant did not react with any obvious emotion to this news.
After again telling defendant he was having a hard time believing his story, Macellaro speculated aloud that defendant and his wife had argued because she was planning on leaving him. Defendant denied having anything to do with his wife's disappearance, but he admitted his wife was planning to leave him, and he was upset about that because he did not want her to leave him and the children.
Just before 3:00 a.m., Detective Luis Alvarez of the BCPO entered the interview room and asked defendant for consent to search his apartment. Defendant consented to the search, and he read and signed a Spanish version of a consent-to-search form at approximately 2:57 a.m.
Thereafter, Detective Macellaro continued to tell defendant he did not believe him, the police were going to find out the truth, and it would be in his best interest to tell the truth. At this point, defendant started crying and he blurted out (in Spanish), "I didn't want it to happen, it had to happen." Detective Macellaro then asked defendant if he had killed his wife, and he answered "yes."
After allowing defendant a few moments to compose himself, Macellero asked defendant to describe the events of Sunday, September 13, 1998. Defendant began by stating that his wife had been out drinking all night the previous evening, and they argued when she returned. During the course of their argument, Amalia accused defendant of having a girlfriend in New Jersey. Defendant denied this accusation, and offered to take Amalia to the site where he had worked in New Jersey. At about 11:00 a.m., they took a train to the Port Authority Bus Terminal where they boarded a bus to New Jersey. They arrived at the warehouse in Lyndhurst at approximately 12:30 or 1:00 p.m. The warehouse was closed, and the two argued as they proceeded towards the rear of the building. While they were arguing, defendant slowly grabbed his wife around the neck and began to choke her with his hands until she fell to the ground. Once she fell to the ground, he picked up an elastic strap that was lying on the ground and wrapped it around her neck, and he applied pressure. Defendant stated he held the strap for approximately five to ten minutes until his wife stopped moving or breathing. Defendant then tied the strap in a knot around her head and, when he realized his wife was dead, he covered the upper portion of her body with a blue plastic container top.
Defendant walked back to the bus stop, and he went into a nearby liquor store to purchase a return ticket to New York and a beer. While waiting for the bus, defendant returned to the liquor store, inquired about the bus, and purchased a second beer, which he drank before returning home. Defendant told the police that later in the evening, he and Armando went to visit a friend named Felipe, and outside of Armando's presence, defendant told Felipe he had killed his wife. The next day, he twice telephoned a former co-worker, on a pretext, in an effort to obtain information regarding the police investigation.
While waiting for a stenographer to be available, the police reviewed defendant's statement with him a second time. Between 5:48 a.m. and 6:45 a.m. on September 16, 1998, with the aid of a Spanish interpreter, defendant gave a twenty-four page stenographic statement. In his statement, defendant described how he killed his wife at the deserted warehouse in Lyndhurst:
Question: Did a fight start between the two of you?
Answer: Yes, then we started to argue because she told me that if I arrived home drunk ...