On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 01-09-0669.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Parrillo, Yannotti and Espinosa.
Defendant appeals from his sentence and convictions for passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2), and possession of a weapon under circumstances not manifestly appropriate for lawful uses, N.J.S.A. 2C:39-5(d). We affirm the conviction, reverse the sentence and remand for re-sentencing.
The charges arise from the fatal stabbing of Christopher Bensinger during an altercation at a party in Woodbury on October 20, 2000. Defendant was convicted of first-degree murder and weapons offenses in a prior trial. That conviction was reversed in an unpublished opinion filed in 2006. The evidence at the retrial can be summarized as follows:
At the time of the stabbing, defendant was a sixteen-year-old student at Deptford High School. Bensinger's girlfriend, K.P., had alleged that defendant's father, her track coach at Deptford High School, sexually molested her. Defendant's father was indicted in late September 2000.
Several weeks prior to this party, defendant told a friend, Alexis Aquino, that K.P. was a "slut" and threatened her brothers. Aquino told K.P.'s brothers about this conversation; they told K.P., and she in turn told Bensinger that defendant said "he was going to get me and my whole family."
Bensinger arrived at the party at approximately 9:15 p.m. with two friends. His best friend, Joseph Kircher, testified that, almost immediately, Bensinger approached a group that included defendant. Kircher said that Bensinger and defendant were "having words... they weren't really getting along."
Although people tried to dissuade them from fighting, they were soon in the middle of a circle, fighting. Another friend of Bensinger's, Matthew Fair, testified that the fight began when Bensinger threw a punch at defendant over Fair's shoulder. Kircher described the fight in this way. "[T]hey riled each other up and they went at each other at the same time, like two rams butting heads, swinging and punching."
No one saw defendant using any weapon during the fight but defendant was observed hitting Bensinger in the chest. According to Fair, Bensinger stumbled and began throwing "lazy punches" that lacked any force, "just kind of throwing his arms." Defendant continued to hit Bensinger in the face and "beat him around in a circular motion in the yard." No one tried to stop the fight. It appeared to be over when "it seemed like neither one of them had anything left." Defendant was on top and Bensinger was lying "pretty much motionless." Several people separated them. Two of defendant's friends delivered additional blows to Bensinger's face. Bensinger was left, bleeding from his chest.
When Bensinger's shirt was removed, his friends observed a hole in his chest and several cuts on his back. Paramedics arrived within minutes but found Bensinger with no vital signs. Bensinger was taken to Underwood Memorial Hospital in Woodbury.
The source of the bleeding was found to be a hole in Bensinger's heart. Physicians were unable to suture the wound in time to save his life. Bensinger suffered six stab wounds: the fatal stab wound on the left side of his chest that penetrated the left ventricle of his heart, three superficial wounds, and two other non-fatal wounds.
Defendant left the party in Michael Keeper's car with Billy Robinson, Steven Clark, and As-Samad Peace. Defendant had cut his finger to the bone during the fight. His head was also bleeding. Clark suggested that they go to a hospital, but believed that the hospital in Woodbury would not be a good idea because "they're ...