On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-02-0366.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Accurso.
Following a jury trial, defendant Mario Manzanal was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2) (count three); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count six). Defendant was acquitted of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one), and the jury did not consider the charge of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7) (count four). The judge sentenced defendant to eight years on the second-degree aggravated assault charge, subject to a mandatory eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, into which the remaining counts for aggravated assault (counts three and four) were merged. The judge merged defendant's conviction for unlawful possession of a knife (count six) into the conviction for possession of a weapon for an unlawful purpose (count five) and imposed a concurrent five-year term, along with appropriate monetary fees and penalties.
Defendant raises the following arguments on appeal:
THE JUDGE'S ESTIMATE THAT THE TIME LIMIT FOR DECIDING A CASE OF THIS LENGTH IS "WITHIN AN HOUR, TWO, MAYBE THREE," AND HIS DISCOURAGING THE JURY FROM ASKING FOR READBACK, CONSTITUTED IMPROPER JUDICIAL INTERFERENCE WITH THE DELIBERATIVE PROCESS AND WERE SO UNDULY COERCIVE THAT DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW. (Not raised below)
THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10). (Not raised below)
THE JUDGE'S ANSWER TO THE JURY'S QUESTION REGARDING DEFENDANT'S LIABILITY FOR ATTEMPTED AGGRAVATED ASSAULT-SERIOUS BODILY INJURY, WAS WOEFULLY INADEQUATE, BOTH FAILING TO GUIDE THE JURY IN ITS DELIBERATIONS AND HAVING THE CAPACITY TO MISLEAD THE JURY, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. (Not raised below)
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND WAS SEEMINGLY IMPOSED IN ALMOST COMPLETE IGNORANCE OF THE RECORD.
Having considered these arguments in light of the record and existing law, we conclude that none of the alleged trial errors was clearly capable of producing an unjust result. We determine, among other things, however, that the sentencing judge's application of aggravating factor six was error and that defendant's conviction on the weapons charges, for which he received a concurrent five-year term, should have been merged into his conviction for second-degree aggravated assault.
Accordingly, we vacate the sentence and remand for resentencing. We affirm in all other respects.
On September 24, 2008, twenty-five year old Gilberto Ferreira walked home from an evening G.E.D. class in Jersey City. Ferreira testified that as he neared his apartment building, he saw his nineteen year old sister, Sasha,*fn1 among a group of about a dozen young people "hanging out" at the top of the front steps. Ferreira noticed that two of defendant's sons were among the group. Ferreira stopped to borrow his sister's keys to the family's apartment. Sasha gave him her keys and Ferreira proceeded to walk towards the apartment while talking on his cell phone to his cousin. As he walked, Ferreira saw his next-door-neighbor, defendant Mario Manzanal, walking towards him. As defendant approached, he pulled out a knife and stabbed Ferreira in the chest.
Ferreira testified that he screamed, turned, and ran back towards the group, yelling out to his sister, "I'm stabbed," as he ran past her and down the steps. Defendant chased Ferreira with the knife, yelling in Spanish, "I'm going to kill you." As defendant pursued Ferreira down the steps, he fell face down.
Ferreira kept running until he rounded the corner, where he used his cell phone to call his older brother, Alex, for help.
Sasha testified that after she gave her brother the keys, he turned and walked towards their apartment. She then heard him scream. As she turned back in the direction he had gone, "he just rushes right past me and then my best friend, Melissa, she rushes right past me chasing him and then [defendant] Mr. Manzanal comes, chasing my brother with a knife" yelling in Spanish, "I'm going to kill you." As she started down the steps after her brother, defendant fell. As she watched, defendant's "sons picked him up and when they got to the top of the stairs with their father, he went to cut someone else but his son stopped him and said 'that's not him.'" Sasha then ran to her apartment but could not get in because she'd given her brother her keys. "I'm banging on the door and as they're bringing [their father] up, I live right next door to [defendant] Mr. ...