On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-02-0304.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2012 -
Before Judges Payne, Simonelli and Hayden.
Defendant, Judith Castillo, was involved in a love triangle with John Tambe and Nesrine "Sue" Jassim. On November 9, 1999, defendant went to Sue's house, and in her absence, stabbed Sue's sister, Dania Jassim, and, when she came to Dania's aid, allegedly assaulted Dania's mother, Rajaa Malas. Defendant was charged with two counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a(1), two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) and one count of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. Following trial, she was convicted of all charges except the attempted murder of Malas. The trial judge sentenced defendant to thirteen years in custody subject to the eighty-five percent parole ineligibility period of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the attempted murder of Dania Jassim, to a consecutive five-year term for second-degree assault on Malas,*fn1 and to a concurrent five-year term for possession of a weapon for an unlawful purpose. The remaining convictions were merged.
On appeal, we reversed, finding error in the admission of an excessive amount of other crimes evidence, pursuant to N.J.R.E. 404(b), without sufficient redaction and timely limiting instructions. State v. Castillo (Castillo I), No. A-5260-01 (App. Div. July 27, 2004) (slip op. at 8-16).
The case was retried, resulting in verdicts of guilty on all charges relating to Dania Jassim and not guilty on charges relating to her mother. The same judge sentenced defendant to fifteen years in custody, subject to the parole ineligibility provisions of NERA, on the attempted murder charge and to a concurrent four-year sentence on the weapons charge. On appeal, we affirmed the convictions but reversed the sentence, ordering the weapons charge to be merged with the attempted murder charge. State v. Castillo (Castillo II), No. A-4597-05 (App. Div. July 11, 2008) (slip op. at 18).
In connection with that appeal, defendant argued that the sentence imposed on her violated double jeopardy because it exceeded the aggregate sentence imposed following the first trial, and that it was manifestly excessive. Both arguments were unsuccessful. Slip op. at 15-17 (rejecting double jeopardy arguments) and at 17-18 (rejecting excessive sentence arguments). Following denial of certification, State v. Castillo, 196 N.J. 598 (2008), defendant moved for post- conviction relief (PCR), which the original trial judge denied without an evidentiary hearing. This appeal followed.
On appeal, defendant makes the following arguments:
DEFENDANT'S SENTENCE AFTER RETRIAL OF 15 YEARS WITH AN 85% NERA PAROLE INELIGIBILITY PERIOD IS VINDICTIVE AND IMPERMISSIBLY INCREASED HER REAL TIME SENTENCE IN VIOLATION OF HER RIGHT TO DUE PROCESS UNDER THE 5TH AND 14TH AMENDMENTS OF THE CONSTITUTION. (RAISED IN PART BELOW)
A. Defendant's Sentence After Retrial Of
15 Years With An 85% NERA Parole Ineligibility Period Impermissibly Increased Her Real Time Sentence In Violation Of Her Right To Due Process Under The 5th and 14th Amendments Of The United States Constitution and Article I, Paragraph 10 Of The New Jersey Constitution. (Raised In Part Below)
B. Defendant's Sentence is Impermissibly Vindictive. (Not Raised Below)
THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPROPERLY QUASHING THE SUBPOENA ISSUED TO SUE JASSIM ON THE MISTAKEN GROUND THAT R. 1:9-1 IMPOSED A FIVE DAY SERVICE REQUIREMENT, THEREBY DEPRIVING DEFENDANT THE OPPORTUNITY TO OBTAIN CRITICAL ...