On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-04-0347.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 12, 2007
Before Judges Cuff, Lisa and Simonelli.
A jury found defendant Hector Martinez not guilty of murder but guilty of first degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1) and N.J.S.A. 2C:2-6 (Count One); third degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d and N.J.S.A. 2C:2-6 (Count Two); and fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d and N.J.S.A. 2C:2-6 (Count Three). Defendant was sentenced to a twenty-year term of imprisonment subject to an 85% NERA*fn1 parole ineligibility term on Count One. After merging Count Three with Count Two, defendant was sentenced to a concurrent five-year term. The appropriate assessments and penalties were also imposed.
On the morning of December 15, 2002, the body of Nancy Martinez was discovered in Pulaski Park in Passaic. She was a local resident and known as a prostitute and drug abuser.
A police officer who responded to the scene observed several puncture wounds to the left side of the victim's chest. The medical examiner described seven stab wounds, including one which penetrated the chest cavity, one which penetrated the abdominal cavity and damaged the lower aspect of the left kidney and the aorta, and one which penetrated the pericardial sac and the left heart ventricle. The examiner also described an incised wound to one arm that suggested that the victim had raised her arm to defend herself from a physical attack. The cause of death was multiple stab wounds to the chest and abdomen. The medical examiner estimated that the victim died about midnight.
The victim was last seen alive with her boyfriend, Gilberto Ramos, also known as Monstro. From information obtained from Ramos and others, the police sought to locate a person known as Coquito. Defendant was known as Coquito.
One of the persons interviewed by the police on December 15, 2002, was Jose Ramirez. On December 17, police interviewed Ramirez again at police headquarters. Following this interview, police left to find defendant. He was found under an overpass of Route 21, a place where homeless persons congregated, and transported to the police station where he was administered his Miranda*fn2 rights and gave a statement.
In his statement, defendant related that on December 14, at approximately 11 p.m., Ramirez and he encountered the victim on a street in Passaic and paid her $5 to obtain marijuana for them. She departed with the money and Ramirez and defendant continued to walk down the street. After traversing two or three blocks, they again encountered the victim, who was with a man.*fn3 Instead of giving them the marijuana she promised to obtain for them, the man "got aggressive with us and he went after [defendant] and the lady went after [Ramirez]." Then, defendant stated that "I took out a knife that I had in my pocket and I lunged at him at least twice, but I don't know if I actually cut him or if I hit her, because we were all tangled up. [Ramirez] took out the knife and he went after her with it."
On appeal, defendant raises the following issues:
Point 1 The jury charges were insufficient.
A. Failing to charge passion/provocation manslaughter was erroneous and violated defendant's constitutional right to due process (raised below).
B. The accomplice liability charge did not follow the model charge (not raised below).
Point 2 Three references to the out-of-court statement of co-defendant Ramierez that implicated defendant in the crime violated the hearsay rule and defendant's constitutional right to confront the witnesses against him (raised below).
Point 3 The trial court should have excluded defendant's statement to the police because the State did not demonstrate that it was defendant's own voluntary statement (raised below).
Point 4 Defendant's sentence is excessive. We affirm.
Defendant argues that the trial judge erred when he denied defendant's request to charge passion/provocation manslaughter. He also contends for the first time on appeal that the accomplice liability charge did not conform to the model charge and this nonconformity omitted "what view of the facts could lead the ...