On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-06-0676.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Graves, and J. N. Harris.
Defendant Jean Morales was convicted by a jury of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1); 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 had been previously convicted of the same crimes, plus first-degree murder, N.J.S.A. 2C:11-3(a)(1) or -3(a)(2) in a jury trial in 2002. Those convictions were reversed for the failure of the trial judge to sua sponte instruct the jury on passion/provocation manslaughter as a lesser-included offense. See State v. Castagna, 376 N.J. Super. 323, 355 (App. Div. 2005), rev'd on other grounds, 187 N.J. 293 (2006). This appeal reviews the outcome of defendant's retrial for the murder and other associated charges.
After merger, defendant was sentenced to an aggregate term of thirty years incarceration, subject to the eighty-five percent parole disqualification provision of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the charge of aggravated manslaughter. He appeals, claiming three primary errors: (1) the jury charge was not sufficiently tailored to the facts; (2) N.J.S.A. 2C:11-4(b)(2) is violative of the Fourteenth Amendment's equal protection clause by denying offenders who kill with extreme recklessness the opportunity to mitigate their crimes to a second-degree offense; and (3) the sentence was manifestly excessive. We reject all of defendant's arguments and affirm.
During the late evening of October 23, 1999 and into the early morning of October 24, 1999, a group including Violet Arias, Alvin Baez, Anthony Castagna, Josephine Castagna, Thomas D'Amico, Edward Gentile, Christopher Longo, Alex Montalvo, Carmine Perrotti, Luis Rodriguez, Ann Truzzolino, and defendant were present at Sinners Go-Go Bar (Sinners) in Elizabeth. Some time after 11:00 p.m., Arthur McKeown and Bennett Grant arrived at Sinners. There, they greeted and spoke with Truzzolino and the others.
After 1:00 a.m., McKeown and Grant decided to leave Sinners. Truzzolino was in their company as they departed. Arias observed them outside, where she prevailed upon an apparently intoxicated Truzzolino to return inside to the bar. Grant followed Arias and Truzzolino where shortly thereafter, an oral and physical altercation ensued between Grant and Arias. Sinners' management stepped in and ordered Grant to leave. Grant acceded, exited Sinners, and began to walk away. Arias, Castagna, and other patrons followed Grant, which resulted in more scuffling, name calling, and arguing.
Eventually a large group of patrons--fifteen to twenty in number--ran outside surrounding Grant, some of whom then engaged him in fisticuffs. Grant fled towards a nearby bridge with what was described as "a wild herd" in hot pursuit. His retreat took him through driveways, alleyways, and backyards throughout the neighborhood; he even clambered over a fence in an attempt to escape the horde.
Meanwhile, back at Sinners, a Jeep Cherokee pulled up and several people entered the vehicle, which also set out to pursue Grant. As Grant was continuing his flight towards the bridge, he began to cross a street when he was struck by the door of the Jeep and knocked to the pavement directly in front of the vehicle. The crowd of pursuers reassembled around Grant, where several persons beat and kicked him mercilessly. Arias testified that she saw defendant kick Grant several times in the upper body.
Eventually, defendant was observed walking towards Grant's immobile body carrying a Belgian block, which weighed approximately twenty-five pounds. Still being pummeled by others in the now reduced crowd of about six or seven, Grant was "just laying on the floor kind of in a fetal position." Defendant held the block over his head with two hands and proceeded to drop it on Grant's head. A witness described the aftermath as the following:
[Grant] had a large hole in the front of his forehead. The whole cranial plate in the front of his forehead had flopped down. Blood was gushing out of his brain.
The crowd immediately dissipated, and a new crowd of onlookers began to form around Grant as the multitude awaited emergency services. Defendant, and virtually all of the other members of the mob that had pursued Grant, left the scene.
Grant was transported to University Hospital in Newark with multiple grievous injuries, including a fractured skull and brain contusion. He was in a coma for five months before ultimately succumbing to his injuries. At trial, the cause of death was described as stemming from "the complications of the blunt head trauma," most ...