On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 00-02-0304.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 14, 2008
Before Judges Stern and C.L. Miniman.
Defendant Judith Castillo appeals from her conviction on retrial for the attempted murder of Dania Jassim and unlawful possession of a weapon and from the sentence of fifteen years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the attempted-murder charge and four years for the unlawful possession of a weapon charge to be served concurrently. We affirm the convictions but remand the sentence for merger of the weapon conviction with the attempted-murder conviction.
The facts developed at the retrial beginning on March 29, 2005, follow: Defendant met John Tambe in January 1997. After dating for several months, they broke off their relationship when defendant began attending college. In December 1997 Tambe began dating Nesrine "Sue" Jassim. Sue and Tambe went through a series of breakups and reconciliations over the next two years. However, in July 1998 Tambe resumed his relationship with defendant. This relationship continued on an intermittent basis, with Sue and defendant vying for Tambe's affection until July 13, 1999, when defendant informed Tambe that she was pregnant with his child. Despite the pregnancy, in late October or early November of 1999 Sue and Tambe again reconciled. Sue resumed the relationship despite knowing that defendant claimed to be pregnant with Tambe's child because Tambe told Sue that he did not believe defendant was pregnant. Sue did not inform her sixteen-year-old sister, Dania Jassim, or her mother, Rajaa Malas, that she had resumed her relationship with Tambe.
On November 7, 1999, Sue went to the parking lot of a Quik Chek in Garfield that was located down the street from Tambe's home. Sue claims that she and Tambe had agreed to meet in this parking lot. Sue noticed that defendant was with Tambe. As they approached the parking lot, Sue believed they were arguing and got out of her car to listen to their argument. Sue heard them arguing about defendant's pregnancy and Sue interrupted to call defendant a liar. Sue and defendant then engaged in shouting insults at each other. At one point during the argument, Sue saw defendant hit Tambe and Sue alerted a nearby police officer.
On the evening of November 9, 1999, Sue left her home to pick up Tambe from work without telling her mother or sister that she was leaving. Around 9:00 p.m. that evening Dania was at home working on a school project when a "young-looking girl" whom she did not recognize rang the doorbell. The person at the door claimed to be a friend of Sue and asked Dania if she could come in to wait for her. Dania said no but, after consulting with her mother, she let her come in to the family room and then she paged Sue to tell her about her visitor. After talking for a while, defendant asked Dania for a glass of water and Dania offered her a piece of apple pie. While they were in the kitchen, defendant asked Dania if her father was home and she told defendant that her parents were divorced. Defendant asked Dania if she had a boyfriend, which Dania denied. Then Dania asked defendant if she had a boyfriend and defendant replied, "Well, that's why I'm here." Defendant looked as though she was going to cry. The entire time defendant was in the house she wore her coat and only took off her gloves to eat the pie. After watching television defendant offered to help Dania with her school project. They worked on the project in the breakfast room for about five minutes until defendant asked for more water and went to the kitchen to get it. Dania continued working on her project but soon "felt something touch her neck." Dania turned around to see defendant holding a knife with blood on it. Dania started screaming and defendant covered her mouth with defendant's hand until Dania bit it. A violent struggle then ensued with defendant repeatedly cutting and stabbing Dania.
Rajaa was sleeping upstairs when the struggle began but she woke up when she heard "Dania screaming out of her mind." Rajaa went downstairs to find defendant "trying to stab Dania . . . in her belly." Rajaa then joined the struggle in an attempt to free Dania. Rajaa also tried to call "911" but the call did not go through. During the struggle Dania grabbed the knife to keep it away from her stomach and at one point defendant dropped it. Dania recovered the knife and held it behind her back while defendant dragged her by the hair across the kitchen. Dania and Rajaa got defendant on the ground by the pantry doorway. Rajaa was sitting on defendant and told Dania to stab her but she could not, so Rajaa told Dania to call the police. Because the kitchen phone was pulled off the wall, Dania ran to the living room and called 911. Dania still had the knife. Meanwhile, defendant got out from under Rajaa and grabbed her by her hair and pulled her into the dining room. Defendant then bit Rajaa above her eye and ran out of the house. Both victims identified defendant as the perpetrator.
Officer Salvatore LaFerlita of the Paramus Police Department arrived at the scene at 9:50 p.m. in response to the 911 call. By this time, three other officers had already arrived. LaFerlita noted that the woman who opened the door, Rajaa, was on her hands and knees and looked "as if she was in some kind of struggle" and "had a bruise above her right eye and was bleeding from her left wrist." The officers then followed a moaning noise to discover Dania "lying face down on the sofa . . . with a large amount of blood on her back."
Dania and Rajaa were taken to Hackensack University Medical Center and Dania was examined by Dr. John Locurto, Jr., and was assigned the "highest priority trauma code" meaning that "there is a chance that the person may die." Locurto testified that Dania had "multiple stab wounds, and in one side of her chest, there was a particular one that . . . looked particularly bad." Locurto determined that these wounds were "life-threatening." X-rays revealed that "one of her lungs was collapsed," and if she did not receive medical treatment "she would have died."
Detective Christopher Brock spoke with Dania at the hospital and Dania described her assailant as "a Hispanic female, approximately 20 years of age, approximately 5 foot, 4 inches tall,  a little heavy, and with a possible name of Judy." Examination of records revealed that the assailant might have been defendant and the police went to the home of Lourdes Tavares, defendant's sister. Defendant was not home but Tavares admitted that defendant had phoned her and asked to be picked up at a local shopping center. The police accompanied Tavares and arrested defendant.
Appellant was charged with first-degree attempted murder of Rajaa Malas and Dania Jassim, N.J.S.A. 2C:5-1, 2C:11-3(a)(1) (counts one and two); second-degree aggravated assault of Rajaa Malas and Dania Jassim, N.J.S.A. 2C:12-1(b)(1) (counts three and four); third-degree aggravated assault of Rajaa Malas and Dania Jassim, N.J.S.A. 2C:12-1(b)(7) (counts five and six); third-degree aggravated assault of Rajaa Malas and Dania Jassim, N.J.S.A. 2C:12-1(b)(2) (counts seven and eight); and third- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count nine).
The first jury found defendant guilty on all counts except count one, the attempted murder of Rajaa. On count two the judge sentenced defendant to thirteen years in prison with an eighty-five percent NERA parole ineligibility period plus five years of parole supervision. On count three the judge sentenced defendant to five years to be served consecutively to count two. The judge merged counts four, six and eight with count two and counts five and seven with count three. On count nine the judge sentenced defendant to five years to be served concurrently to the ...