On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0477.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2008
Before Judges Sabatino and Simonelli.
As the result of a jury verdict, defendant Victor Penzo was convicted in June 2006 of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). His conviction arose out of the fatal stabbing of a street gang member, Remy DeLeon, in Union City. The court sentenced defendant to a twenty-year prison term.
Defendant now appeals, specifically contending that: (1) the trial court should have granted his motion for a new trial because of certain comments by the prosecutor in summation; (2) the verdict was against the weight of the evidence; and (3) his sentence was excessive. We reject each of these contentions and affirm.
The State's proofs at trial established the following relevant events and circumstances. Defendant had been a member of a street gang in Union City known as Dominicans Don't Play ("D.D.P."). In or about 2002, defendant left the gang and began cooperating with the State Police to help them infiltrate the D.D.P. DeLeon, meanwhile, was a member of the juvenile version of the D.D.P., Dominicans Taking Control ("D.T.C.").*fn1
When it became known that defendant had left the D.D.P. and may have been working as an informant, he was beaten up by DeLeon and other gang members. The State Police subsequently admitted defendant and his family into the witness protection program, and, for a period of time, they relocated to Connecticut. Eventually, defendant violated the terms of his cooperation with the State Police by coming back to New Jersey and as a result, was terminated from the program.
The melee that led to DeLeon's death occurred on December 13, 2004, near Emerson High School. That day several eyewitnesses saw defendant and defendant's cousin, Luis Mojica, attack DeLeon and his teenage friend, Juan Peralta. DeLeon was looking after his two-and-a-half-year-old nephew at the time.
A few blocks from the high school, defendant made a u-turn in his car. He drove towards DeLeon, who was walking down the street with his nephew by a grocery store. Peralta was a few paces in front of DeLeon. Defendant was accompanied in his car by Mojica and another young man, Noberto Rosario.
Defendant, who was wearing a black jacket, got out of his car. He advanced towards the pedestrians, pulling out a knife from his jacket pocket. Mojica also got out of the car. Mojica began attacking Peralta with a knife or a sword, slicing Peralta's nose. Meanwhile, defendant went after DeLeon. As DeLeon back-pedaled, defendant stabbed him in the chest. Defendant and Mojica then jumped back into the car and drove away.
The stab wound punctured DeLeon's heart. He died shortly thereafter. Peralta survived, sustaining a large cut on his face that extended over to the bridge of his nose.
An eyewitness to the attack called in defendant's license plate. Police spotted the car and pulled it over. They arrested defendant and Mojica. The knife used to stab DeLeon was not recovered. Two other knives were recovered from the scene, but neither had been used against DeLeon.
Defendant gave a statement to the police, contending that DeLeon and Peralta had been the aggressors in the encounter. Defendant claimed that he only had been defending himself with a knife ...