On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-04-0293.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
Following a jury trial, defendant was convicted of second-degree attempted passion provocation manslaughter, N.J.S.A. 2C: 11-4b(2) (as a lesser-included offense of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a(1)); fourth-degree criminal trespass, N.J.S.A. 2C:18-3 (as a lesser-included offense of second-degree burglary, N.J.S.A. 2C:18-2a); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. The jury acquitted defendant of first-degree attempted murder and second-degree burglary, N.J.S.A. 2C:18-2a. At sentencing, the court imposed an aggregate eight-year term of imprisonment with an eighty-five-percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The aggregate sentence included the sentences imposed for two additional offenses in unrelated matters for which defendant pled guilty as part of a negotiated plea agreement. On appeal, defendant primarily challenges the court's rulings related to the burglary charge and the sentence on the offenses for which the jury found him guilty. We affirm.
The charges arose out of a domestic dispute between defendant and his wife, Johanna Rodriguez, from whom he was separated. Prior to their separation, defendant and Francisco Perez got into an altercation after defendant saw Rodriguez with Perez. Rodriguez applied for and received a domestic violence restraining order against defendant. Nine days later, on February 24, 2004, defendant returned to the marital home around 10:20 p.m., after he got off work. According to defendant, who testified on his own behalf, he needed to retrieve important paperwork, including his birth certificate and tax information, which were still in the home. As he approached the house, all the lights were off. He therefore believed no one was home and entered the house from the rear with his key. He proceeded to the back bedroom and, upon turning on the lights, saw his wife and Perez lying in bed in their underwear. Defendant confronted Perez, who started cursing at him. Defendant punched him, and the two men started fighting. Defendant claimed Perez grabbed a knife. The knife was regularly kept next to the TV and was used to unlock another bedroom door that usually remained locked by another tenant. The knife was on the floor, and defendant saw Perez grab it. Defendant disarmed Perez, but not without cutting his own hand. He then stabbed Perez twice in the head.
Both Perez and Rodriguez testified that defendant had the knife in his coat and removed it when he proceeded to attack Perez. Rodriguez identified the knife as the one used at the house, but it had not been in her bedroom before defendant entered.
Prior to trial, the State moved to introduce evidence of defendant's prior incident with Perez as relevant to the issue of defendant's intent and motive. The State also sought an instruction to the jury that defendant's flight after the incident was evidence of his consciousness of guilt. Defendant moved for severance of the burglary and contempt charges.
The State and the defense agreed to sever the contempt charge. The court denied the motion to sever the burglary charge and, following an N.J.R.E. 404(b) hearing, ruled that the prior incident would be admitted as relevant to establish defendant's motive and intent, but must be sanitized in accordance with State v. Silva, 378 N.J. Super. 321 (App. Div. 2005).
On appeal, defendant raises the following points for our consideration:
THE COURT COMMITTED REVERSIBLE ERROR IN ALLOWING EVIDENCE OF . . . DEFENDANT'S PRIOR ALTERCATION TO BE ADMITTED AND PRESENTED ...