On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-01-0121.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2010
Before Judges A. A. Rodriguez and Grall.
After a jury trial, defendant Angel Hernandez was convicted of first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; murder, N.J.S.A. 2C:11-3(a)(2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). The judge imposed a life sentence subject to NERA*fn1 for the murder conviction, and a consecutive twenty-year term for conspiracy to commit murder. We affirm.
At 4:45 a.m. on August 31, 2004, Trenton police found Alex Ruiz, badly injured and wearing only underwear, near a Route 29 entrance ramp. He appeared to have been strangled and was in a coma by the time police brought him to the hospital. Later that morning, Jeri Lyn Dotson's daughter reported to a neighbor that her mother was dead. The police arrived and found Dotson "at the bottom of the basement stairs, lying on her back in a pool of blood." She died from a gunshot wound to the back of the head only hours before.
Prior to the summer of 2004, Ruiz was a member of a Trenton gang called the Netas. Although Ruiz was a Neta, Jose Negrete, the leader of the Trenton Latin Kings (Kings), invited Ruiz to join the Kings. Ruiz agreed.
Disassociated Neta members must survive a savage beating known as a "beatdown." Unbeknownst to Ruiz, Negrete had surreptitiously agreed to allow the Netas to abduct Ruiz for a beatdown. Believing that the Netas would kill Ruiz, Negrete was surprised to learn later that day that Ruiz had survived the beatdown. Intending to "take care of it," Negrete ordered several Kings to abduct Ruiz from Dotson's house and kill him that night.
The men went to Dotson's house and forced Ruiz into their car. After strangling him with wire, the men left Ruiz for dead in a dumpster on Duck Island. Ruiz, however, survived and crawled to the Route 29 entrance ramp where police found him.
After the Kings reported Ruiz dead, Negrete learned that Dotson had witnessed the abduction. Fearing that she would inform police, Negrete ordered defendant, Joey Martinez, Jose Maldonado, and Maurice Young to kill Dotson. According to defendant, Negrete threatened to kill him if he did not kill Dotson.
Defendant, Maldonado and Young entered the Dotson residence at about 3:00 a.m. Defendant told Dotson to go to the basement to get laundry. Young attempted to shoot her but his gun jammed. Defendant quickly grabbed a gun out of a nearby cabinet, and shot Dotson in the back of the head.
Police arrested defendant on February 25, 2005 for the murder. He signed a written confession in police custody on February 27, 2005.
Before closing arguments, defendant's counsel objected to the verdict sheet because "the information about a lesser included charge should also be included on the sheet." The prosecutor agreed. "On the verdict sheet, I assume there has to be some modification. . . . [I]f you find the defense of duress, or the state has not disproved duress beyond a reasonable doubt then there should be a finding of manslaughter." The judge confirmed, ruling that "there will be a lesser included manslaughter" charge on the sheet.
After closing arguments, the judge again met with counsel to go over the jury charges. The judge "modified [the murder charge] to just include murder, not aggravated manslaughter or reckless manslaughter," because "the only way that the jury would find the lesser included would be by virtue of the law, which states, if duress applies to murder, it automatically becomes manslaughter."
With regard to duress defense, the judge explained that "I do mention . . . in each question, the defense of duress, so I think overall, that's the proper way to handle it." Defense counsel agreed, and withdrew his objection to the verdict sheet.
The judge read to the jury the following instruction: "Note that regarding the charge of murder, our law provides that the defense of duress is not available as an absolute defense. It is only available to reduce the degree of the crime to manslaughter." Regarding accomplice liability, the judge offered the following instruction:
[T]he state must prove beyond a reasonable doubt each of the following elements:
[1.] That [any or all of the co-defendants] committed the . . . murder, of Jeri Lynn [sic] Dotson . . . .
[2. T]hat . . . [defendant] . . . did aid or agree or attempt to aid [the co-defendants] in planning or ...