On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-06-2656.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Following a jury trial, defendant Monte Torres*fn1 and his co- defendant Jannette Alvarez were found guilty of first-degree purposeful and knowing murder, N.J.S.A. 2C:11-3a(1) and (2); and third-degree endangering, N.J.S.A. 2C:24-4. On May 16, 1991, the trial judge sentenced defendant to a term of imprisonment of forty-years with a thirty-year period of parole ineligibility.
On appeal, defendant's conviction was affirmed, and the Supreme Court denied certification. 138 N.J. 270 (1994).
Defendant filed a petition for a writ of habeas corpus in the United States District Court, and that petition was denied in 1996 for failure to exhaust administrative remedies. On appeal to the United States Court of Appeals for the Third Circuit, defendant's application for a certificate of appealability was denied, whereupon on March 6, 2000, approximately nine years after his initial conviction and three years after denial of his habeas petition, defendant filed a petition for post-conviction relief (PCR). The motion judge denied the application as time-barred. On appeal, we reversed and remanded for reconsideration and a statement of findings of fact and conclusions of law as well as a determination as to whether an evidentiary hearing was necessary. On remand, Judge Patricia Costello,*fn2 in an expansive twenty-eight page written opinion, acknowledged the time-bar issue, R. 3:22-12(a), but addressed the merits of defendant's PCR claims. She concluded that defendant's assertions were without merit and dismissed the petition. Defendant appeals, and we affirm.
The facts were synthesized in Judge Costello's opinion:
The facts are as follows. On March 30, 1990 defendant Monte Torres struck what the medical examiner described as the fatal blow to Ciomi Velez*fn3 , the eight-month-old daughter of his paramour and co-defendant, Janette Alverez. Alverez also had two other children, five-year-old Anaiss*fn4 and three-year-old John*fn5 . Alverez had begun striking Ciomi earlier in the day. In the evening, Alverez had taken Ciomi to Rosa Cepeda's apartment where Cepeda noticed bruises all over the child and saw Alverez strike her hard in the face.
She saw [Alverez] hitting the child forcefully, and the child's head struck the wall and a changing table. Cepeda heard Alvarez declare that she was going to kill the baby and hit her until she dies. Cepeda intervened to stop the abuse. Alverez briefly left the apartment, leaving Ciomi with Cepeda, but return about a half-hour later to feed Ciomi and to take her home. Cepeda had seen Alverez strike Ciomi and her five-year-old brother in the past. Both Alverez and defendant hit Ciomi on the legs that day.
Later that evening, defendant was left alone by Alverez with the three children. According to Annais, he struck Ciomi with both a belt and his hand. The blows were to her back, her right side, and her abdomen and he warned Annais not to tell anyone what he had done.
When Alverez returned a short time later, it was to find defendant leaving the apartment with a limp Ciomi in his arms. A neighbor, Fernando Soriano, began to drive them toward Clara Maass Hospital, and defendant told him Ciomi had fallen off the bed. En route, Soriano was able to intercept an ambulance which took over the transportation of Ciomi and Alverez. Defendant asked Soriano to take him back home.
When they arrived back at the apartment building, defendant saw a police car in front and asked Soriano to drop him off at the corner. He told Soriano it was because he had outstanding warrants, but the warrant part of the statement was kept from the jury. The defense attorney suggested to the jury that defendant may have been concerned about traffic ticket warnings. Defendant eventually went back to the apartment and told Cepeda it was all his fault.
Doctors were unable to revive Ciomi, who died a few hours after arriving at the hospital. She was covered with bruises, old and fresh, on the front and back of her body. The cause of death was internal bleeding from a ruptured liver, tears to the mesentery and mesocolon and blood vessels, separation of the right pubic bone and sacrum and the ligaments holding them together, fracture of the pelvis, bleeding in her scalp and skull, and multiple contusions covering her body. The fatal blow described as one to the torso, done with great force.
Officer Carmen Pelose of the Newark Police Department went to the apartment door and knocked a number of times, accompanied by employees of the Division of Youth and Family Services ("DYFS"), who were concerned there might be other children in the apartment in danger. (Alverez was in the process of giving her first statement to police when Pelose was dispatched to the apartment.) They received no answer, but heard voices inside. They apparently knew of Ciomi's injuries before they arrived at the apartment. At the DYFS employees' direction, Officer Pelose forced his way inside, and found defendant, Annais and John.
Defendant testified at trial. He stated that during the course of the day, he had consumed a few beers.*fn6 He was given his Miranda warnings twice. Detective James Fultz testified that the defendant understood the warnings and spoke unaccented English well, but expressed difficulty reading. The warnings were given to him verbally, because Detective Fultz felt that since defendant only had a seventh grade education, he might have difficulty reading them. Defendant admitted to slapping Ciomi twice and hitting her once in the stomach, but not hard. He said she then stared nodding out, like she was in a daze. He also admitted to hitting her on the legs on prior dates. Later, defendant and Alverez were arrested. At trial, defendant admitted to hitting Ciomi in the abdomen. He later partially recanted and denied hitting her on the night of the ...