On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-01-0176.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Baxter and Nugent.
Defendant Paul Gagliano appeals from his April 1, 2010 conviction on charges of fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and third-degree attempt to cause significant bodily injury, N.J.S.A. 2C:12-1(b)(7), as a lesser included offense of second-degree aggravated assault (count five).*fn1 On count three, the judge imposed a seven-year term of imprisonment, subject to a three and one-half year period of parole ineligibility. On counts five and two, the judge imposed a four-year term of imprisonment and an eighteen month term of imprisonment, respectively, concurrent to each other and concurrent to the sentence imposed on count three.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT FAILED TO EXCLUDE TESTIMONIES AS A RESULT OF A VIOLATION OF A SEQUESTRATION ORDER.
A. At a minimum, the Trial Court should have provided the jury with instruction regarding the Sequestration Disobedience.
II. THE TRIAL COURT FAILED TO EXCLUDE IMPROPER AND PREJUDICIAL VIDEO EVIDENCE INTRODUCED BY THE STATE'S EXPERT.
III. THE PROSECUTOR RELIED UPON INAPPROPRIATE REMARKS IN HER SUMMATION THAT DENIGRATED THE DEFENSE, CONSTITUTING PLAIN ERROR.
IV. THE PROSECUTOR MADE SEVERAL IMPROPER REMARKS IN HER OPENING STATEMENT CONSTITUTING REVERS[IBLE] ERROR.
V. [THE] PROSECUTOR COMMITTED PLAIN ERROR BY COMMENTING ON DEFENDANT'S POST-ARREST SILENCE.
Defendant began dating Stephanie Fallacara in 2004, when he was seventeen years old. She ended their relationship in May 2008 to resume a relationship with her former boyfriend, Paulo Simoes. Defendant was extremely upset because he was "in love with the girl. She meant everything to me. We actually were going to have a family together." He described her as his "first love."
According to defendant, between June and July 2008, he and Simoes argued over Fallacara via text messages, with each one asserting "she's mine." Defendant maintained there were "threats back and forth" between himself and Simoes. Defendant said that on July 19, 2008, he awoke to a threat that Simoes sent him in a text message. Defendant responded by threatening to tell Simoes's girlfriend Heather that Simoes was cheating on her by having a relationship with Fallacara. According to defendant, over the course of the day, he and Simoes continued to exchange text messages, escalating in tone. At one point in the day, defendant sent Simoes a text message stating, "[w]ell, if you'd like to meet up and handle this like men, let's do so."
According to defendant, Simoes agreed to meet him outside Simoes's home.
At approximately 2:00 a.m. on July 20, defendant left a local club with his friend Justin Slansky and drove to Simoes's residence. When Simoes did not "show up," Slansky drove defendant to Fallacara's residence, where defendant observed the two sitting in Simoes's vehicle.
Defendant became "angry" and "upset." He "wanted to brawl, . . . wanted to actually make things come to a head with [Simoes]." Slansky, however, refused to stop the car and drove defendant back to his, Slansky's, home where defendant retrieved his truck and drove back to Fallacara's home with Slansky riding in the passenger seat. As defendant drove, Slansky observed defendant "reach down [under the seat], and pick up a black box" containing a weapon that was "black" and looked like a "regular gun."
According to Slansky, when he and defendant arrived at Fallacara's home, defendant positioned his truck next to Simoes's vehicle, and defendant "starting yelling out the window." Slansky described what happened next: "[Simoes] got out of his truck, he walked around the front of it, and as he walked around the front of it, [defendant] shot him." Slansky heard a "pop" that sounded like a "hydrogen powered gun or CO2" when defendant fired the gun. Defendant, who never got out of his truck, sped away quickly. As they were leaving, Slansky heard "something" hit the back of defendant's truck, as if Simoes "threw something."
Defendant testified, admitting that he shot Simoes, but insisted that the gun in question was an Airsoft gun that was essentially a toy, and was capable of firing only plastic pellets, not the copper BB that was ultimately removed from Simoes's tear duct. Defendant maintained that his original intention was merely to engage in a fistfight with Simoes, but when he observed Simoes exit his vehicle, and reach behind his seat, defendant became "a little nervous[.]" When Simoes "charg[ed]" toward defendant's truck with something in his hand, defendant reached for his Airsoft and "discharged it." Defendant insisted that he fired the Airsoft "[t]o push [Simoes] back" because Simoes had "something" in his hand that he was "coming at me with," and asserted that he fired at Simoes in self-defense. After firing the Airsoft, defendant drove back to Slansky's home, where he threw the Airsoft into Slansky's garbage pail.
On cross-examination, defendant admitted that although the Airsoft "shoots plastic BB's[,] . . .[t]here was a copper BB" in the Airsoft that night. When asked whether anyone else had access to the Airsoft that night, defendant stated that "[Slansky] did," but denied that he was insinuating Slansky had loaded the weapon with copper BB's.
Defendant admitted that when he was initially questioned by a detective, he never mentioned that Simoes "came at [him]." He also admitted that when asked by the detective whether he owned a BB gun, he denied owning one. He admitted to having sent Simoes twenty-nine text messages on the night of July 19, 2008.
Simoes's account was vastly different. He testified that as soon as he began dating Fallacara, defendant began calling him "non-stop in the middle of the night, everything, threatening me, talk[ing] about ...