On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Graves and J. N. Harris.
Defendant was indicted for second degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count five);*fn1 first degree robbery, N.J.S.A. 2C:15-1 (count six); felony murder, N.J.S.A. 2C:11-3(a)(3) (count seven); purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count eight); unlawful possession of a weapon (an automobile), N.J.S.A. 2C:39-5(d) (count nine); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count ten); and second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count eleven).
Defendant was found guilty of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as a lesser-included offense to the purposeful or knowing murder; of a disorderly persons theft, N.J.S.A. 2C:20-3, see N.J.S.A. 2C:20-2b(3), as lesser-included offense to robbery; of the two weapons offenses; and of aggravated assault. The trial judge merged the weapons and aggravated assault convictions into the aggravated manslaughter conviction and sentenced defendant to the custody of the Commissioner of Corrections for ten years with eighty-five percent to be served before parole eligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent thirty-day term for theft. Defendant was also ordered to pay $1050 to the Violent Crimes Compensation Board (VCCB), and to pay other penalties.
Co-defendant Cordero and the victim, Julio Colon, were lovers who lived together before their relationship ended. According to Colon's brother-in-law with whom Cordero and Colon had lived, Cordero was "possessive, abusive and very jealous." After the relationship ended, Cordero repeatedly sought to get back together with Colon. But defendant and Colon developed a relationship and began living together in Vineland in February 2004. Colon also maintained an online friendship with Irwin Castro, who lived in Newark. Defendant knew Colon had a friend in Newark, and that when Colon visited the friend, defendant could not get in touch with him.
On April 30, 2004, Colon borrowed a Chevy Suburban SUV from Kenneth Sheppard, the owner of Sheppard Bus Service, a company Colon had worked for, with the "understanding [that the vehicle] would be brought back that night or the next day." Edward James, Castro's roommate, testified that he and Castro had agreed to allow Colon to move in with them while Colon looked for a job in New York City.
The Suburban SUV had not been returned as promised. On May 2, defendant and Cordero visited Sheppard looking for Colon, and Sheppard told them that Colon had his car and he "wanted [his] vehicle back." Defendant and Cordero offered to go to Newark to find Colon, and Sheppard agreed and told them they would have to get the keys from Colon. Cordero and defendant then drove to Newark in defendant's car, a 2003 silver Acura CL owned by defendant's stepfather.
At about 7:30 a.m. on May 2, defendant and Cordero knocked on James's door looking for Colon. James knew Colon only as "Jay" or "J" and told them they had "the wrong apartment." Around 11:00 a.m., James heard Cordero and defendant calling Colon's name from outside the building. James went outside to speak to the men who were sitting in a car on the corner of East Delevan and Mt. Prospect Avenues. They told James that the SUV was considered stolen and that they were there to retrieve it. James then went back up to his apartment and told Colon "to call the owner of the car."
A short while later, James, Colon, and Castro went outside heading towards the SUV. An argument ensued between Colon and Cordero, at which point defendant got out of his car, and began fighting with Colon over the keys to the SUV. Cordero took the keys and entered the SUV, at which point defendant attempted to grab Colon to stop him from pulling Cordero out of the SUV. Defendant proceeded to hit Colon from behind, whereupon Colon turned around and punched defendant. Defendant then said, "I'm out of here," and went back to his own car.
Shortly afterwards, Cordero ran across the street with the keys to the SUV and a few items of Colon's, including a yellow rose. He got into the defendant's car. Colon followed him and jumped on the hood of defendant's car as it was moving towards him. According to James, had Colon not jumped on the hood the car would "have ran him over."
Defendant's car continued moving until it came to a stop which, James stated, was an effort "to get [Colon] off" the hood. Colon went "flying off" the hood at which point the car "backed... up" and then "came towards him again." Colon jumped back on the hood of the car, and grabbed the windshield wiper as the car began "swerving." James estimated that the car was traveling more than twenty-five miles per hour.
The driver, who James identified as defendant, ran a stop sign on the corner of East Delevan and Clifton Avenues, as well as a stop sign on the corner of East Delevan and Mount Prospect Avenues, while, according to James, Colon was "[h]anging on for his life."
James Hester, who lived in a house on the corner of East Delevan and Clifton, having heard noise went outside, and saw two men involved in an altercation near a silver Acura. The two men then walked over to the "gold SUV," whereupon another altercation ensued. One of the men got into the SUV, and Colon "force[d] the guy out of the driver's side," and followed him as the man, holding a set of keys, walked back to the Acura. After the man got into the Acura, Colon climbed on top of the hood and sat with his back "resting against the windshield."
According to Hester, the Acura "drov[e] forward," the driver "hit the brake," and Colon "roll[ed] off" the hood. Colon stood up, and the Acura went into reverse and then drove forward directly at Colon whereupon Colon again jumped on the hood. With Colon hanging onto the windshield wipers, the car made a left on East Delevan and ran a stop sign at Mount Prospect.
Timothy Hester, James Hester's uncle, also went outside after he heard noises and saw what appeared to be a fight across the street. He went into his driveway to get "a better signal" for his cell phone, and called 9-1-1. When he returned he saw a man on the hood of a car which started to move, and "then came to a stop and the man fell off." The man "seemed" to stand back up, at which point "the car reversed" and came back towards him. The man jumped on the hood of the car again whereupon "the car reversed another time, changed direction and appeared to speed away." Timothy then lost sight of the car. However, he stated that had the man not jumped on the hood of the car, he "would have been run down." He added that the driver "could have gone around" the man.
Detective Anthony Iamello of the Newark Police Department arrived on the scene around 3:00 p.m. At the south side of the 500 block of Mount Prospect Avenue, Iamello "discovered two large pools of blood," approximately ten feet apart. He then went to Clara Mass Hospital in Belleville. There he saw the Acura that transported Colon to the hospital, noticed "large amounts of blood" inside it. He also saw a "dent on the hood" and that the windshield wipers had been "pulled open." Iamello also observed items inside the Acura that he learned belonged to Colon, including a cell phone, backpack, and yellow rose.
Detective Todd Mazur of the Newark Police Department was dispatched to the hospital, where he encountered defendant and Cordero. Mazur described them as "covered in blood, very emotional [and] crying."
Colon was in a "deep coma" when he was brought into the hospital and died a week later. The Medical Examiner, who conducted his autopsy, observed four skull fractures as well as bleeding and swelling of the brain. He concluded that the cause of death was "blunt impact" to the head.
Defendant gave a statement to the police at around 7:00 p.m. on May 2, which the State introduced at his trial. His version of the incident was as follows:
Me and Hector Cordero were sitting in my car talking about Julio Colon. Julio is Hector's ex-boyfriend. Then we started to cry and decided that we were going to leave. Then we seen [sic] Julio with two other guys walking towards the Suburban. Hector... got out [and] told Julio he wanted to talk to him. Julio tried to start the Suburban and Hector told him to come back home with him. Hector kept asking for the keys to the Suburban but Julio would not give him the keys. I kept telling Hector[, l]et's go, but Hector did not want to go.
Hector got a hold of Julio's keys and Julio tried to get the keys back. I drove my car towards the Suburban and told Hector that someone is going to call the cops.... Hector got in the Suburban and Julio got in and tried to get the keys. They started to fight in the Suburban. I got out and tried to break up the fight. Julio kicked me in the chest and the stomach and [I] asked him to stop. Julio grabbed me in a head lock and Hector got out and tried to break it up. Hector and Julio got into it again. The neighbors see it and try to stop the fight. Then when the fight was broken up, I seen [sic] Hector get into my car and I got in the driver's side, [and] locked the doors. Julio was walking towards us. Started the car. Julio jumped on the hood of my car and grabbed the wiper. I started to move at a slow speed and told him to get off. I was on Clifton Avenue, made a left on to ...