NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-01-0229.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Reisner and Yannotti.
Defendant Janny Nieves appeals from an order entered by the Law Division on August 30, 2011, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged with first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2); and second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4. Defendant's motion to suppress certain statements he made to law enforcement was denied. Thereafter, defendant was tried before a jury.
At the trial, the State presented evidence, which established that Yadira Obando (Obando) and defendant were involved in a romantic relationship, and Obando became pregnant with defendant's child. She gave birth to J.N. in February 2001. In April 2001, defendant and Obando moved to an apartment in Newark, which they shared with others.
Obando testified that she and defendant constantly argued and often engaged in physical altercations, in which defendant would strike her. She said defendant hit the child and often shook her to get her to stop crying. At some point prior to July 17, 2001, defendant told Obando that he dropped the baby. The baby was not reacting, but defendant and Obando did not take the child to see a doctor. The child seemed to recover.
J.N. was not well on July 17, 2001, and Obando and defendant took the child to the emergency room of a hospital in Newark. A pediatric nurse examined the child, and she seemed to be in good physical condition, but appeared to have an ear infection and upper respiratory congestion. The nurse consulted with a doctor and medication was prescribed.
According to Obando, sometime between July 17, 2001 and July 21, 2001, defendant struck J.N. in the back. However, neither defendant nor Obando took the child to the hospital after this incident. On July 21 or 22, the child was lethargic and she was vomiting. Obando said that on July 23, defendant struck her and also struck J.N. Obando left defendant alone with the child in their bedroom.
Thirty minutes later, Obando returned to feed the child. She said defendant was holding the baby and appeared to be trying to get the child to react. The baby's eyes were closed and she would not open them. Obando and defendant took the child to the hospital. The child was not breathing. She was transported to Beth Israel Hospital and placed in a pediatric intensive care unit (ICU). The child died on July 26, 2001.
The State presented medical testimony indicating that J.N. had a bruise on the right side of her brain, a right temporal fracture and multiple right parietal fractures. The child also had multiple rib fractures, injuries to her liver and adrenal bruising. Dr. Timothy Yeh (Dr. Yeh), the attending physician at the pediatric ICU at Beth Israel where J.N. was treated, testified that the injuries occurred at different times and were not accidental.
Dr. Yeh testified that J.N.'s injuries were consistent with being shaken. The child's brain injuries were caused by significant force, by direct impact or shaking. He opined that the rib fractures were caused by a squeezing type of force. He said the injuries to the child's liver and adrenal bruising were caused by an impact to her back or abdomen.
Dr. Wayne Williams, the Assistant Medical Examiner in the Regional Medical Examiner's Office in Newark, performed the autopsy on July 27, 2001. He stated that the cause of death was blunt force injuries to the child's head, chest and abdomen.
The jury found defendant not guilty of murder, but guilty of a lesser-included offense, first-degree aggravated manslaughter. The jury also found defendant guilty of ...