On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-02-0199-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Collester and Grall.
Tried to a jury, defendant Angel Calderon was found guilty of manslaughter, contrary to N.J.S.A. 2C:11-4b(1), as a lesser included offense of the charge of murder; possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5(b); possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a); and aggravated assault, contrary to N.J.S.A. 2C:12-1(b). The sentencing judge granted the State's motion for an extended term and sentenced defendant to twenty years with eighty-five percent parole ineligibility for manslaughter; a consecutive term of ten years with five years parole ineligibility for second-degree unlawful possession of a weapon; and concurrent terms on the remaining convictions.
The following testimony was adduced at trial. Shortly before midnight on October 1, 2004, about 200 to 300 custom car enthusiasts and street racers gathered at the Hudson Mall parking lot adjacent to R&S Strauss, Dunkin Donuts and Burger King on Route 440 in Jersey City.
A group from Newark consisted of Craig Cohen, his girlfriend, Kristen Reynolds, and friends including Gregory Tavarez, Victor Tavarez, David Guevara, Joaquin Oquendo, Laura Aviles, the victim, Jose Santos, as well as a number of unnamed persons. The Newark group arrived at the 440 lot in various vehicles. Craig and Kristen arrived at the 440 lot in Craig's vehicle. Jose, David, Joaquin and Laura arrived at the 440 lot in David's blue Honda Civic and Gregory and Victor arrived in Victor's green four-door Honda Civic. A group from Perth Amboy included defendant, Carlos Aponte, Ivan Rios, and others. Some of this group arrived in Aponte's white four-door Honda Civic.
The Newark group believed that some of the group from Perth Amboy were involved in a burglary at Craig's business, Junior Auto, in New Brunswick and stole about $10,000 in auto parts. A confrontation took place which soon led to violence with anywhere from fifteen to eighteen persons engaging in fistfights. After being hit in the face by someone from the Newark group, Aponte got into his car and tried to leave. As he was speeding out of the parking lot, he lost control and rammed into a concrete barrier. He was injured and taken to a hospital in another car.
Craig's friends from Newark then began stripping parts from Aponte's customized Honda Civic. A short time later Craig saw a black Acura Integra arrive driven by a man he knew as "White Mike," later identified as Mike Wagner. As the black Acura drove by, Wagner leaned out of the window and told Craig that he was going to kill him. When he saw Mike hand defendant a black object, Craig and Kristen left and heard gunshots as they were driving away.
Gregory Tavarez testified that he saw the four-door Acura Integra driven by a white man pull into the parking lot. The man passed a gun wrapped in a white towel to the defendant.
Defendant then walked slowly toward the Newark group and opened fire. The crowd scattered. Defendant then fired at a fleeing blue Honda driven by Jose Santos, causing it to crash into the Burger King. Defendant next fired three shots at a car driven by Gregory's brother, Victor. Then defendant then turned and aimed the gun directly at Gregory from about ten feet away and said, "Come over here before I shoot your ass." Gregory raised his hands in the air and said he "didn't see nothing." Defendant got into the black Acura Integra driven by Wagner and sped off. Moments later, Gregory heard screaming and was told that Jose Santos had been shot and killed.
Joaquin Oquendo, David Guevara, and Laura Aviles were in the blue Honda Civic with Jose Santos when he was shot. Oquendo testified that he was hanging out with Santos near the blue Honda Civic when he told him to get in the car because someone had a gun. He said that as they were driving away, Santos slumped over the wheel, and they crashed into the exterior wall of the Burger King. Guevara testified that as they were driving away, he saw a Hispanic male pointing a gun at Santos, who then slumped forward.
Ray Hankins testified that he had known defendant and Wagner for a couple months before the crime when defendant was staying at Wagner's great aunt's house in Linden. Hankins stated that on October 1, 2004, he and Wagner had been driving around Woodbridge in Wagner's black Acura Integra when Wagner received a phone call. Wagner told him the phone call was from defendant and that "a guy named Craig just had [defendant] jumped over at the Dunkin' Donuts so we were to head over there and help him out, go fight these kids." Hankins testified that Wagner made a quick stop at his house in Linden and returned a minute or so later with a gun wrapped in a towel. When they arrived at the parking lot, defendant ran over to the car and took the gun from Wagner. Defendant then ran towards a crowd of people and started shooting. Hankins testified he saw defendant shoot three or four times at a blue Honda Civic which crashed into a wall. Defendant then ran to Wagner's black Acura Integra, and the three men drove to Wagner's house. Hankins explained that he had lied to investigators until they had evidence placing him at the scene of the shooting because he was "trying to stay out of trouble."
About a week after the crime, Wagner told police that the gun was behind his house in Linden. Expert testimony indicated that spent shell casings found at the scene had been fired from that gun, and that a damaged bullet found ...