On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-06-00735.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Axelrad, Sapp-Peterson and Espinosa.
A jury convicted defendant Kimanie Stewart of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant was sentenced on the reckless manslaughter conviction to a ten-year term of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with the weapons convictions merged into that conviction. Defendant appeals from his conviction and sentence. We affirm.
The victim, Jose Emilio Collado, was hosting a party in a Paterson garage on January 25, 2004. A group of uninvited guests associated with a gang known as East 19th Street Boys United ("EBU"), including defendant and William Robles, arrived around midnight. Robles started shouting, "EBU is in the house." Collado responded by making a hand sign that indicated he was with the "Fourth Avenue" gang. Defendant and Robles flashed their EBU hand signs. Collado came face-to-face with defendant and Robles while other members of the EBU group "bunched up" behind defendant. Fighting broke out, initially between Collado and Robles. Then, defendant stabbed Collado once in the chest. Collado uttered that he "got stabbed." Fighting continued among other people there. Collado was taken to the hospital where he died as a result of a stab wound received during the fight.
Defendant made several statements in which he admitted stabbing Collado. The first was made to George Garcia. Garcia was throwing another party visited by defendant and Robles that evening and later accompanied defendant to a pool hall. Defendant told him that he had stabbed someone and gave him the knife. Garcia threw the knife over the fence outside the pool hall. Defendant later told both Garcia's mother, Felicia Smith, and Sandra Morales, the mother of his child, that he had stabbed someone. At defendant's request, Smith took him to the bus station. Defendant planned to travel to Florida but returned to Smith's home after the bus had problems en route.
On January 30, 2004, police went to Smith's home, seeking to question defendant. They found him hiding in a closet. The police took defendant, Smith, Garcia, and others to headquarters. Both Smith and Morales admitted that they had withheld information in prior statements to police. Smith disclosed that defendant had confided in her regarding the stabbing. Similarly, when Morales was interviewed a second time, she revealed that defendant had told her that he stabbed someone. Garcia gave a statement to police and agreed to show the police where he had thrown the knife. However, the ground was covered with snow and the police were unable to locate the knife at that time. The knife was ultimately recovered in March 2004.
Defendant was advised of his Miranda*fn1 rights and questioned by Detective Scott Heath of the Paterson Police Department. He did not make any statement admitting his guilt in the stabbing. However, because the State intended to present evidence regarding his reactions to statements made during his interrogation, a Miranda hearing was conducted. The trial court found that the defendant's responses were admissible.
Defendant acknowledged attending Collado's party, Garcia's home, and a pool hall on the night of the stabbing but denied stabbing anyone. He also disclosed that he had boarded a bus to Florida but returned to Paterson.
Another detective, Carmine Pelosi, told defendant that Garcia had gone to the pool hall with the police and shown them where he threw the knife. He told defendant, falsely, that the police had recovered the knife. Defendant asked, "You really found it? You found the knife?" Then, he asked Detective Pelosi to describe the knife. Detective Pelosi repeated the description given to him by Garcia: a black-handled folding knife. Defendant's demeanor changed at this point. He took a deep breath, moved forward in his chair and then leaned back and sighed. Looking down, he shook his head, but said nothing. The interview ended when defendant asked to speak to his mother.
Clothing taken from defendant at the time of his arrest was subjected to forensic testing, which detected the presence of human blood on his sweatpants and jacket. However, it could not be determined whose blood was on the clothing.
The weapons convictions were merged with the manslaughter conviction for sentencing. Defendant was sentenced to ten years incarceration for the reckless manslaughter conviction and, pursuant to NERA, was required to serve eighty-five percent of that sentence before being eligible for parole. The court ordered that the sentence run ...