NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-01-0041.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Jason F. Statuto, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a supplemental pro se brief.
Before Judges Messano and Lihotz.
Following a jury trial, defendant Julio Graciano was found guilty of the first-degree knowing and purposeful murder of Elisha Wordelman, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); three counts of the lesser-included offense of second-degree aggravated assault of Jermar Roberts, John Boyd, and Byron Stevenson, N.J.S.A. 2C:12-1(b)(1) (counts four, five and seven); and one count of the lesser-included offense of third-degree aggravated assault of Evette Frasier, N.J.S.A. 2C:12-1(b)(2) (count six). In a separate trial, the jury found defendant guilty of second-degree possession of a weapon by certain persons, N.J.S.A. 2C:39-7(b) (count eight).
The judge sentenced defendant as follows: after merging count two into count one, fifty-five years imprisonment with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a concurrent five-year term on count three; a consecutive ten-year term on count four, with an eighty-five percent parole disqualifier; eight-year terms on counts five and seven, concurrent to count one and to each other; a concurrent four-year term on count six; and a concurrent nine-year term, with a five-year parole disqualifier, on count eight.
Defendant raises the following points on appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF INFORMATION WHICH CAME TO THE ATTENTION OF THE JURY DURING DELIBERATIONS, AND WHICH THE PARTIES HAD AGREED WOULD NOT BE ELICTIED DURING THE COURSE OF THE TRIAL BECAUSE OF ITS PREJUDICIAL AND INFLAMMATORY NATURE
POINT II: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A STATE'S WITNESS INFORMING THE JURY THE DEFENDANT HAD BEEN INCARCERATED FOR A SIGNIFICANT PERIOD OF TIME (NOT RAISED BELOW)
POINT III: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE
In a separate pro se brief, defendant raises the following additional points:
Point I: The defendant's rights to due process of the 14th amendment were violated when [the] jury failed to find defendant guilty beyond "reasonable doubt" to "knowingly and purposely" murder dependent on flawed and vague jury instructions.
Point II: The judge erred by failing to furnish and [r]e[-]charge [the] jury with partial verdict instructions that would have alleviated [its] confusion in reaching a unanimous count, or accept partial verdict.
Point III: Prosecutorial misconduct
utilizing inflammatory remarks, to induce a bias depiction to jurors during summation and cross examination.
Point IV: The court erred when evidence was suppressed that was exculpatory to the defendant['s] 1st and 6th amendment right[s] to have evidence tried by [the] jury.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The evidence of defendant's guilt was substantial.
Elizabeth Lantigua, defendant's girlfriend, lived at one of four apartment buildings comprising Riverview Towers in Paterson. Between 10:00 and 11:00 p.m. on July 27, 2007, she was waiting in the lobby of her building for a pizza delivery. A dark skinned man complimented Lantigua on her cell phone and pretended to try and take it from her. Lantigua called defendant and told him that there was "some loco guy" who wanted to take her phone, but who "was just playing around with me." Lantigua's and defendant's phone records revealed several more calls were made between them.
Wilmer Marte, defendant's friend, was with defendant and several others that evening drinking in front of School 24 when defendant received a call from Lantigua. Defendant became angry during the call and afterwards said that someone had tried to "disrespect" Lantigua. Defendant walked away in a hurry, and Marte, Carlos Rojas, Angie Rodriguez, Manny Jacquez and Yokasta Gomez got into Jacquez's white van to look for him.
Once found, they convinced defendant to get into the van by telling him that they would take him wherever he wanted to go. Defendant said he wanted to go to his home, and along the way, he received additional phone calls. He told Marte that a "guy touched his girl's butt."
After arriving at his house, defendant went inside while the others waited outside. After two or three minutes, defendant returned to the van and asked to be driven to his "girl['s] house." When the van arrived at Riverview Towers, defendant remarked, "I think that's them." He told Jacquez to pass in front of the building, make a U-turn, and drop him off. At the time there were a lot of people outside the apartment complex.
Marte and Jacquez both testified that defendant fired several shots toward the apartment complex from the window of the van as it passed. Marte saw a small automatic handgun in defendant's hand. Gomez essentially corroborated these events.
Rodriguez, who claimed to be drunk, initially did not identify defendant as the shooter. However, several weeks later in a formal statement, she told police that defendant fired the shots. Defendant subsequently told Marte and Jacquez that he fired the shots to scare people, and he would take full responsibility.
Jermar Roberts, Wordelman's fiancé, saw a white van drive by, heard shooting and saw an arm extending from the passenger side of the van pointing in his direction. He fell to the ground as shots rang out. After the shooting stopped, Roberts saw Wordelman lying on the ...