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State v. Pichardo

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 10, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EDGAR PICHARDO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-12-1124.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 25, 2008

Before Judges C.S. Fisher and C.L. Miniman.

On August 27, 2003, Ashley York gave a party in the basement of her Hawthorne home to celebrate the seventeenth birthday of her boyfriend, Richard Vacca. At approximately 11:30 p.m., Vacca had a dispute at the party with someone known as "Chino," which resulted in Chino grabbing Vacca by the throat. Chino and his girlfriend, Tina Morano, left the party soon thereafter.

At 1:00 a.m., when only Vacca, York and Richard Allison were in the basement, Chino and his girlfriend entered with two others, one of whom asked Vacca if he had "disrespected" his cousin. When Vacca denied this, this unidentified man punched Vacca, knocking him to the floor; between five and eight other men then entered the basement and began throwing bottles and stomping on the prone Vacca. Allison was also severely beaten in this melee. York's threat to call the police prompted the assailants to flee. York then took Allison to the hospital because he was drifting in and out of consciousness.

Vacca called his cousin, Darryl Jackson, who arrived to pick up Vacca a short time later. While driving toward an area in Paterson where Chino was known to hang out, Jackson called other friends -- Anthony Gray and Ejustic Watkins -- who followed in a separate car (the Gray vehicle) to River Street in Paterson.

As Jackson and Vacca drove down River Street, they saw a group of approximately fifteen people standing in front of the building in which defendant lived. Jackson and Vacca told the group they were looking for "a short Puerto Rican kid with a mushroom haircut," which was their description for Chino. After a brief conversation, the two vehicles drove further down River Street, made u-turns, and proceeded again past defendant's building. As the Gray vehicle passed by, an individual in a red t-shirt, later identified as defendant, threw a cup at the car. An argument ensued, but a nearby police officer directed the pedestrians to go inside and the vehicles to move along.

Later, the vehicles again drove by defendant's building. This time, as the Gray vehicle drove past, defendant stepped out from behind a parked car, raised a rifle to his shoulder, looked through the rifle's infrared scope, and fired two shots through the rear windshield of Gray's car. One shot struck Ejustic Watkins in the head; he later died.

Based on Jackson's identification, defendant was arrested and transported to police headquarters, where he was advised of, and waived, his Miranda*fn1 rights. Defendant at first denied involvement, but then acknowledged he had been with Chino when he returned to the party in Hawthorne. He also denied being involved in the fight in the basement, but ultimately conceded he fired a weapon at the Gray vehicle, stating:

Then I went home and the other guys told me that some guys were looking for me. I went upstairs and got the gun. Then I went back downstairs and as soon as I walked out I saw the car coming around. I went behind the car and shot at it two times.

After that, I went upstairs and I lay in bed and I put the gun under some clothes. After that I was watching T.V. for about 20 minutes that is when the cops arrived at my house.

The police also asked defendant about the weapon he had fired at Gray's car. He described it as a black rifle with an infrared scope that he bought from "a white guy" for a "hundred bucks." In fact, the weapon had been stolen from its owner's home in August 2003.

Defendant was indicted and charged with: first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 and 2C:20-2(a).

At the conclusion of a trial, defendant was acquitted of murder but convicted of the lesser-included offense of aggravated manslaughter. He was also acquitted of possession of a weapon for an unlawful purpose but convicted of the other charged offenses. At sentencing, following the merger of the weapon and aggravated manslaughter convictions, defendant was sentenced to a twenty-two year prison term, with an 85% period of parole ineligibility. He was also sentenced to a consecutive four-year term on the stolen property conviction.

In this appeal, defendant presents the following arguments:

I. THE TRIAL COURT ERRED IN FAILING TO ENTER A JUDGMENT OF ACQUITTAL SUA SPONTE REGARDING THE CHARGE OF MURDER EMBODIED IN COUNT I, THEREBY NECESSARILY TAINTING THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF THE LESSER INCLUDED OFFENSE OF AGGRAVATED MANSLAUGHTER ARISING THEREFROM (NOT RAISED BELOW).

II. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments regarding Point I.

At trial, defendant moved for a judgment of acquittal but only on the stolen property charge. That motion was denied and is not the subject of this appeal. Defendant now contends, however, that the judge should have granted a judgment of acquittal on the murder charge even though he did not seek that relief at trial. We reject this. Considering the test to be applied to such a motion, State v. Reyes, 50 N.J. 454 (1967), there would have been no basis for the granting of a motion to acquit on the murder charge. The evidence revealed that defendant stepped out from between parked cars after the Gray vehicle passed by and took deliberate aim into the vehicle's passenger compartment with the use of the rifle's infrared scope. This evidence would have more than amply fended off a motion to acquit because it supported the State's claim that defendant contemplated or intended to cause serious bodily injury. See State v. Wilder, __ N.J. __ (2008).

In any event, defendant was acquitted of murder. As a result, the only reason for us to consider whether the judge erred in not granting a motion, which defendant never asserted, for a judgment of acquittal would be if the jury's consideration of the remaining counts were somehow tainted by its consideration of the murder charge. In this regard, defendant relies on State v. Christener, 71 N.J. 55 (1976), where the Court held that a judge's instructions on an unsupported charge of a greater offense than warranted by the facts tends to suggest to the jury that there is sufficient evidence to support a conviction on the greater offense, and thus opens the door to a compromise verdict on a lesser-included offense. Id. at 72-73. See also State v. Galloway, 133 N.J. 631, 651 (1993).

This contention was deprived of any substance on January 31, 2008, when the Supreme Court described the Christener standard as "difficult in application, unreliable in result, and inefficient for our trial system," Wilder, supra, __ N.J. at __ (slip opinion at 25), and rejected its "continued use . . . in connection with claims of jury overcharge," id. at __ (slip opinion at 28). The Court held that an argument based on overcharging, like other non-constitutional trial court errors, "should be subjected on appeal to the same 'unjust result' standard established in Rule 2:10-2." Ibid. In viewing defendant's argument in this new light, we are satisfied it is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


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