On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 04-03-0276 and 04-09-1252.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Cuff, Lihotz and Simonelli.
A jury convicted defendant Leonardo Villegas of first degree murder, contrary to N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2) (count one); second degree possession of a weapon (handgun) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4 (count two); and third degree unlawful possession of a weapon (handgun), contrary to N.J.S.A. 2C:39-5b (count three). After the trial, pursuant to a plea agreement, defendant pled guilty under a separate indictment to third degree possession of marijuana with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a.
Judge Marmo merged count two into count one and sentenced defendant on count one to a sixty-five year term of imprisonment with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive five years on count three. On the separate indictment, the judge imposed a concurrent three-year term of imprisonment with a one-year parole disqualifier.
On appeal, defendant raises the following arguments:
POINT I THE COURT'S REFUSAL TO INSTRUCT THE JURY ON THE THEORY OF SELF-DEFENSE DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL, REQUIRING REVERSAL.
POINT II IN REQUESTING THAT THE COURT NOT INSTRUCT THE JURY AS TO PASSION/PROVOCATION MANSLAUGHTER, DEFENSE COUNSEL DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. IN THE ALTERNATIVE, THE COURT ERRED IN NOT PROVIDING SUCH A CHARGE SUA SPONTE. (NOT RAISED BELOW)
POINT III THE 65-YEAR TERM IMPOSED UPON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL APPLICABLE CIRCUMSTANCES.
Defendant raises the following arguments in a pro se supplemental brief:
POINT I THE LOWER COURT'S FAILURE TO ADEQUATELY VOIR-DIRE POTENTIAL HISPANIC JURORS COUPLED WITH THE STATE'S FAILURE TO SERVE DEFENDANT WITH DISCOVERIES IN SPANISH AND PROVIDE AN INTERPRETER THROUGHOUT THE PROCEEDINGS, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND A FUNDAMENTALLY FAIR TRIAL. (NOT RAISED BELOW)
POINT II DEFENDANT WAS DENIED A FAIR TRIAL WHEN DUHAMEL SANTIAGO WAS ALLOWED TO TESTIFY IN PRISON GARB IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND IMPARTIAL TRIAL GUARANTEED BY U.S. CONST. AMEND XIV; AND N.J. CONST. (1947) ART. 1, PARS. 1 AND 10. (NOT RAISED BELOW)
POINT III THE TRIAL COURT'S FAILURE TO SUA SPONTE INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSES OF RECKLESS AND AGGRAVATED MANSLAUGHTER DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND A FUNDAMENTALLY FAIR TRIAL IN VIOLATION OF U.S. CONST. AMEND XIV; ...