On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-07-1042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2010
Before Judges Cuff and Fisher.
After closely examining the issues raised in this appeal, we reject defendant's arguments that the trial judge erroneously instructed the jury on flight and on defendant's decision not to testify and that the sentence imposed was excessive, and affirm.
Defendant was indicted and charged with first-degree murder, N.J.S.A. 2C:11-3(a), as well as 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), arising from the stabbing death of Gerald Cooper.
The jury heard evidence that Ashley Alston was in a relationship with defendant and also had a prior relationship with Gerald Cooper. Gerald was frequently incarcerated during the term of their relationship, but Ashley continued to communicate with him by telephone or by letter. She ended her relationship with Gerald upon learning he was also receiving calls and letters from another woman. Ashley, however, did not tell Gerald the relationship had ended; she simply stopped communicating with him.
A few days after being released from an eighteen-month prison term, Gerald telephone Ashley at her Passaic residence at or about 3:30 a.m. or 4:00 a.m. on March 29, 2005. During this call, Gerald professed his love for Ashley. She responded that she loved him too but that they could no longer be together because she was dating defendant, who was asleep near Ashley when she received this and other calls from Gerald that morning. When Gerald began yelling, Ashley disconnected the call. She also hung up when Gerald called back several times, and she eventually turned off the ringer on her phone.
A short time later, Ashley heard someone repeatedly call her name from outside the residence, and then heard the sound of things thrown against the window. Ashley got out of bed, went to the window, and saw Gerald outside. She told Gerald to leave, but he refused and said he would kick in the window unless she came outside. During this discussion, defendant woke up and Ashley went outside to see if she could "get rid of" Gerald. Ashley approached Gerald outside, and told him to leave; Gerald "immediately... punched [her] in the face." Gerald continued to punch Ashley, and, when she tried to fight back, Gerald threw her against a parked car.
In a minute or two, defendant arrived outside and began trading punches with Gerald. Ashley testified that at some point during this fight, she saw defendant pick up a knife and stab Gerald in the left shoulder area. That, however, did not stop the fight, and Gerald continued throwing punches. At some point, Ashley's mother exited the building and yelled for the two to stop; her efforts only caused defendant and Gerald to run away from the immediate area.
Within a block's distance, Gerald fell to the ground. Defendant said he was sorry as blood pooled about Gerald.
Someone had called a taxi, and, at Ashley's urging, defendant entered the taxi and was driven away to Paterson.
The medical examiner testified that Gerald sustained fourteen knife wounds. A wound to Gerald's left shoulder severed the carotid artery and was the cause of death, which was pronounced that morning at 6:00 a.m.
Defendant was arrested in Paterson and indicted. At the conclusion of a trial, the jury acquitted defendant of murder, but found him guilty of aggravated manslaughter, N.J.S.A. 2C:11-4(a), as well as the charged weapons offenses. The trial judge merged the weapons convictions into the manslaughter conviction for sentencing purposes and imposed the maximum prison term possible -- a thirty-year term subject to an eighty-five percent period of parole ineligibility. See N.J.S.A. 2C:11-4(c) (declaring aggravated manslaughter a crime of the ...