On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-07-1190.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Grall and Chambers.
After a trial by jury, defendant, Jorge Alvarado, was found guilty of the murder of seventeen-month-old Jan Carlos Torres, the son of his girlfriend, in violation of N.J.S.A. 2C:11-3(a).
Defendant, who was thirty years old at the time of sentencing and had no prior record, was sentenced to life imprisonment, subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, requiring that he serve a period of imprisonment of sixty-three years, nine months and three days before becoming eligible for parole. We affirm.
The death of the child took place on March 2, 2003. Defendant and the mother, Maria Delcarmen Torres, had been living together since September of the preceding year. At about 10:00 a.m. on the day in question, the mother had left the house on errands and testified that the child was well. Around 11:30 a.m., she received a call from defendant that the child was feeling bad and "getting choked." She was only a block away, and when she arrived home, the child was not moving. Defendant denied doing anything to the child. Defendant called 911 at her request. The child was taken to the hospital, where he was pronounced dead.
The record contains a number of statements attributed to defendant as to what happened. In his statement to the police, defendant explained that he had pressed the child to his chest when the baby began to cry, and when the child quieted down, he put the baby on the bed. He then heard the child gasp for air, and he called the mother. He told the police that he did not intend to kill the child. He attributed bruises found on the child's body to a struggle he had with the mother the night before when she attempted to take the baby from him. Defendant's former girlfriend, Luz Mary Carcamo, testified that when she saw defendant in jail, he told her that when the child began to cry, he began playing with the child, tossing him in the air, but then slipped on spilt milk and could not catch the child. Francisco Escribano, a prisoner in the cell next to defendant, testified that defendant told him that the baby would not stop crying, and out of frustration, defendant slammed the baby against the wall and punched the child in the chest, but miscalculated, causing the baby to hit the bedpost and fall to the floor. Defendant then put the baby on the bed and called his girlfriend.
Dr. Thomas A. Blumenfeld, M.D., a forensic pathologist from the State's Regional Medical Examiner's Office, testified for the State. He expressed the opinion that the child suffered from battered child syndrome on the basis that the injuries were repetitive (occurred on more than one occasion) and could not have occurred accidentally. He advised that the child had bruises on his body that had occurred on different days, some possibly more than seven days earlier. In addition, the child had rib fractures which had occurred ten days to a month or so before his death. Some of the fractures roughly corresponded to the site of fingerprint bruises. The doctor could not determine from the fracture and bruises whether the child had been injured at two separate times or more times than that.
The doctor found that the most likely mechanism to have caused the death was squeezing or compression of the child's chest. He described the death as suffocation. The injuries he found were not consistent with punching; rather, they were consistent with pressing or placing pressure on the child. Further, he found that rather than one mechanism, three mechanisms or steps were involved on the day of the death: the child had been squeezed in the chest, pushed up on the face, and injured on his left thigh. The doctor estimated that it would take roughly one minute for the child to die with consistent squeezing. Death would be slower and more painful if the compression stopped before death.
After conducting a Rule 104 hearing, the trial judge allowed the child's mother, who had pled guilty to endangering the child, to testify to earlier instances when defendant had harmed her son. She testified to bruises she found on her son on occasions after the child had been in defendant's care. She also identified photographs of the child with visible bruises. In addition, she testified that on one occasion she found her son with a bloody mouth with defendant nearby, although defendant said the child had hit himself with a toy. Another time she discovered hot sauce on the nipple to the baby's bottle. According to the mother, defendant admitted putting the hot sauce on the nipple as a practical joke. Another time she found melting ice cubes in the baby's diaper after defendant had left for work.
The charges of murder, aggravated manslaughter and reckless manslaughter were submitted to the jury, which returned a verdict of guilty of murder.
In this direct appeal from the conviction, defendant raises four issues.
THE TRIAL JUDGE ERRED IN ADMITTING EVIDENCE OF PRIOR ASSAULTS UPON THE VICTIM AS THERE WAS NOT CLEAR AND CONVINCING EVIDENCE THAT THE DEFENDANT WAS THE PERSON WHO HAD COMMITTED THESE ASSAULTS.
THE JURY INSTRUCTION ON OTHER-CRIMES EVIDENCE WAS INADEQUATE IN THAT THE BURDEN OF PROOF GIVEN TO THE JURY CONTAINED THE TERM "SATISFIED" INSTEAD OF THE PROPER "CLEAR AND ...