On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-10-3873.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester and Graves.
In a six-count indictment, defendant Margarito Mauleon was charged with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count four); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count five); and third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count six). A jury convicted defendant on all counts.
When defendant was sentenced on February 1, 2008, he was fifty-one years old and, as his attorney noted, defendant's only prior conviction was "a municipal ordinance violation for loud music." Defense counsel argued that the aggravating and mitigating factors were "somewhat balanced" and that defendant should be sentenced "somewhere in the middle, if not the lower range of 10 to 20 years" for his first-degree attempted murder conviction. The State, on the other hand, asked the court "to impose the maximum penalty available." The court merged counts two, three, and four into count one and sentenced defendant to a twenty-year term of imprisonment for attempted murder with seventeen years of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Concurrent five-year terms were imposed on counts five and six.
On appeal, defendant presents the following arguments:
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO SUA SPONTE CHARGE THE JURY REGARDING VOLUNTARY INTOXICATION. (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
After reviewing the record and the applicable law, we reject defendant's contentions in Points I and II but remand for resentencing.
The State's proofs were relatively straightforward. On the evening of October 20, 2006, Juan Lopez Arias (Arias), Juan Bravo (Bravo), and Paula Bautista (Bautista) were sitting at a table in the kitchen of Bautista's house on Hermosa Drive in Lakewood, New Jersey. Arias lived in Bautista's house at the time; Bravo and Bautista were friends, and Bravo sometimes gave Bautista rides because she did not have a car. Bautista's children and several other people were also present in the house.
Shortly after 8:30 p.m., defendant knocked on Bautista's patio door and was let into the house by Arias. Thereafter, defendant sat down at the table with Bravo and Arias. Notably, defendant and Bautista had a prior romantic relationship that she "ended" approximately two months prior to October 20, 2006. Defendant asked Bautista for "permission to drink in the house that night." Bautista told him "No," and she "told him to leave." However, defendant did not leave and Bautista testified as follows:
Q: Did you allow him to stay in the house ...