September 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES WANGER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 92-06-0722-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2008
Before Judges Stern and Lyons.
Defendant appeals from the denial of his second petition for post-conviction relief (PCR) challenging his 1993 conviction of murder and other offenses. Defendant strangled Robert Solimine, Jr. with an electrical cord from the back seat of the victim's car. Defendant asserts that the trial judge should have honored his counsel's request to charge the lesser included offenses of aggravated and reckless manslaughter.
The second petition followed affirmance of defendant's conviction on direct appeal and the denial of his first petition for PCR.*fn1 In addition to the time bar, see R. 3:22-12, we previously rejected the present claim. See R. 3:22-5. On defendant's direct appeal, his point III asserted that "the trial court committed reversible error in denying the defense counsel's request to charge the jury on the lesser included offense of aggravated manslaughter."*fn2 We rejected the claim. If there was no basis for charging aggravated manslaughter, there was no basis on which to charge simple manslaughter. This is particularly true in light of the proofs of extensive planning to execute the victim and that a "Hail Mary" was being recited as defendant was strangled. Defendant denied knowledge of any conspiracy or endeavor to kill Solimine, as opposed to doing it unintentionally or recklessly. Compare, State v. O'Carroll 385 N.J. Super. 211, 229 (App. Div.), certif. denied, 188 N.J. 489 (2006) where defendant may have thought the victim "was about to stab him, and he accidentally wrapped the telephone cord tight around her neck as he attempted to make her drop the knife."