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State v. Ramalho

Superior Court of New Jersey, Appellate Division

August 20, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
ADEMIR RAMALHO, a/k/a ADEMIR ROCHA RAMALHO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 19, 2012.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-11-1062.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief; Ashlea D. Thomas, Deputy Attorney General, on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Grall, Simonelli and Koblitz.

PER CURIAM.

A jury found defendant Ademir Ramalho guilty of murder, N.J.S.A. 2C:11-3a(1), third-degree possession of weapon with the purpose of using it unlawfully against another, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). After merging defendant's conviction for the weapons offenses, the judge sentenced him to a fifty-year term of imprisonment, subject to terms of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed appropriate fines and assessments.

Defendant's attorney raises two issues on appeal:

I. THE TRIAL JUDGE IMPROPERLY REFUSED, DESPITE MULTIPLE, DETAILED OBJECTIONS FROM TRIAL COUNSEL, TO INCLUDE A REINSTRUCTION ON DIMINISHED CAPACITY IN THE RESPONSE TO A JURY QUESTION WHICH ASKED FOR REINSTRUCTION ON MURDER, AGGRAVATED MANSLAUGHTER, RECKLESS MANSLAUGHTER AND INSANITY.
II. THE TRIAL JUDGE IMPROPERLY ADMITTED TESTIMONY OF AN EXPERT WITNESS REGARDING FORENSIC TESTING THAT WAS DONE AT A LABORATORY WHERE THE WITNESS WAS A SUPERVISOR, BUT NOT ONE OF THE PERSONS WHO ACTUALLY PERFORMED (OR EVEN OBSERVED) THE TESTING WHICH TOOK PLACE; THE COURT SHOULD HAVE SUSTAINED THE OBJECTION TO THIS TESTIMONY BECAUSE THE EVIDENCE PROVIDED BY THIS WITNESS VIOLATED THE CONFRONTATION RIGHTS OF DEFENDANT.

In a pro se supplemental brief, defendant raises three additional issues:

I. DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE JUDGE ALLOWED THE CONFESSION MADE BY DEFENDANT INTO EVIDENCE DESPITE THE VIOLATION OF HIS MIRANDA RIGHTS.
II. THE TRIAL COURT'S ERROR OF ALLOWING THE PICTURES OF THE VICTIM'S STAB WOUNDS INTO EVIDENCE IN VIOLATION OF N.J.R.E. 403(B), DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
III.DEFENDANT'S RIGHTS UNDER ARTICLE 36 OF THE VIENNA CONVENTION ON CONSULAR RELATIONS [WERE] WRONGFULLY DENIED. (Not Raised Below).

Because the re-instruction on murder given to the jurors in response to their request did not include direction on the relevance of evidence of defendant's mental condition to the State's burden of proving the elements of murder — a discussion that was included in the oral instruction on murder preceding deliberations — we reverse.

I

At around noon on Sunday, July 23, 2006, defendant stabbed Luzia Emiliano, his former wife, on a public street in Elizabeth. He stabbed her four times, once in the arm, once in the back and twice in the chest. She died because defendant thrust the knife ...


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