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State v. Hamilton

November 6, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AVERY HAMILTON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-10-1015-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 14, 2009

Before Judges Rodríguez and Yannotti.

Defendant, Avery Hamilton, appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

In February 2002, following a jury trial, defendant was convicted of first degree murder, N.J.S.A. 2C:11-3a(1) or (2); felony murder, N.J.S.A. 2C:11-3a(3); armed robbery, N.J.S.A. 2C:15-1; possession of a deadly weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and unlawful possession of a firearm, N.J.S.A. 2C:39-5b. These convictions stem from the killing of Norberto Hidalgo, who was defendant's partner in an illicit narcotics selling enterprise. Hidalgo was shot to death in his apartment in Paterson, during the early morning hours of July 16, 1998. After appropriate merger of convictions, the judge imposed a life term with a thirty-year period of parole ineligibility on the murder conviction, a concurrent eighteen-year term with a NERA*fn1 period of parole ineligibility on the robbery conviction, and a consecutive five-year term with a thirty-month period of parole ineligibility on the weapon conviction. The aggregate sentence was a life term, with a thirty-two-and-one-half-year parole disqualifier and a five-year term of parole supervision upon release from incarceration. We affirmed on direct appeal. State v. Hamilton, No. A-928-02 (App. Div. April 16, 2004), certif. denied, 180 N.J. 458 (2004).

The facts are fully set forth in our opinion on appeal. Briefly outlined, Hidalgo and defendant sold marijuana, crack cocaine, and LSD together until May 1998 when defendant was arrested on a drug-related charge. Hidalgo did not assist defendant in making bail. Defendant consequently offered to cooperate with the police, which included supplying them with Hidalgo's personal information. Defendant was eventually released when his then girlfriend, Jacqueline Acevedo, and the mother of his son, Lu-Keisha Flynn, raised the money for bail.

After defendant was released, he and Hidalgo had a falling out. Hidalgo claimed defendant owed him $1,500. Defendant moved in with Lu-Keisha and began working at E&J Pizza and Grill, owned by Hani El Alfy. There, he continued to sell drugs. El Alfy was married to Melissa Gearhart.

The night of the murder, defendant was with a friend, Antonio Trujillo. The two men met up around 9:00 p.m., drove around for several hours, and consumed three bottles of brandy.

Around 2:00 a.m., the two returned to Trujillo's apartment. At about 3:00 a.m., defendant left. He borrowed a bicycle because Trujillo was too drunk to drive him home. He also borrowed a shirt because it was "smelly... from the liquor." He later arrived at Lu-Keisha's house, where her mother and sister, Latresha also lived. Although defendant alleged that he arrived at 3:30 a.m., both Lu-Keisha and Latresha said he arrived between 4:35 a.m. and 4:47 a.m. Trujillo lived two-to-three blocks from Hidalgo.

There were no eyewitnesses to the shooting. However, Edith Ancieta, who lived in the apartment above Hidalgo's, testified that she heard someone knock on Hidalgo's apartment door. Hidalgo opened the door and had a conversation with a male visitor. She heard shots and Hidalgo saying "no, no, no." Shortly thereafter, the police found Hidalgo laying on the floor, with gunshot wounds to his face, torso, and right arm.

Gearhart testified that defendant admitted to her that he had killed Hidalgo. In addition, Lu-Keisha confirmed that defendant and Hidalgo argued about money in her presence. Subsequently, defendant told Lu-Keisha that he would get the money from Hidalgo by "[w]hatever means necessary."

Acevedo testified that defendant planned to rob Hidalgo because he was angry at him for not bailing him out of jail. She witnessed an argument between defendant and Hidalgo. During the argument, Hidalgo told defendant "[p]ay back is a bitch" to which defendant responded, "revenge is a mother fucker." Latresha testified that defendant came to their home on the morning of the shooting and stated that "he had done something."

Steven Cruz corroborated that defendant and Hidalgo often argued about money from their drug business. Greg Marrero testified that he gave a.40 caliber Smith & Wesson to defendant the day before the shooting. A few days later, Marrero asked for the gun back, but defendant said he had it "stashed" and could not get to it "because it was too close to the house of the murder." Marrero testified that defendant told him he wore socks on his hands so that no prints could be found. Defendant told Marrero that he took approximately $60,000 from Hidalgo.

Lisa Temprano testified that defendant asked her to drive him and Marrero to an old factory in Paterson. Defendant directed Temprano to a brick building. There, both men proceeded to search the area. This was the location where ...


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