NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2688.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Sapp-Peterson, Lihotz, and Hoffman.
Tried by a jury, defendant Alexander Alfaro was convicted of murder, felony murder, conspiracy to commit robbery, and armed robbery. The charges stem from an August 4, 2007 gang attack upon four young adults by defendant, his half-brother Rodolfo Godinez, his cousin Gerardo Gomez, Shahid Baskerville, Jose Carranza, and Melvin Jovel. The victims were robbed, beaten, sexually assaulted and/or slashed. After being shot, three victims died; however, the fourth survived and appeared at trial as the State's principal witness, relating the events that occurred on the evening of the attack.
On appeal, defendant argues various evidentiary errors and flawed jury instructions require we vacate his conviction and order a new trial. Alternatively, he maintains the sentence imposed was excessive. More specifically, he states:
THE STATEMENT OF THE JUVENILE DEFENDANT ADMITTED INTO EVIDENCE VIOLATED HIS RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS AND THE TENETS OF MIRANDA V. ARIZONA AND ITS PROGENY.
EVIDENCE WHICH WAS IRRELEVANT AND SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403. (PARTIALLY RAISED BELOW).
THE LIMITATION OF THE CROSS-EXAMINATION OF THE POLICE WITNESS REGARDING THE PROCEDURES AND DETAILS OF THE INTERVIEWS OF THE CO-DEFENDANTS DENIED MR. ALFARO HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.
THE COURT'S COMMENTS TO THE JURY DURING DEFENDANT'S SUMMATION WERE GROSSLY PREJUDICIAL AND DEPRIVED MR. ALFARO OF A FAIR TRIAL. (NOT RAISED BELOW).
THE INSTRUCTION TO THE JURY ON THE OBLIGATION OF LAW ENFORCEMENT TO ELECTRONICALLY RECORD DEFENDANT'S STATEMENT AND TO PRESERVE NOTES WAS AN INCORRECT STATEMENT OF LAW. (NOT RAISED BELOW).
THE STATE'S ACTION IN CRIMINAL RECORD CHECKING A JUROR WHO HAD ASKED PERMISSION TO ATTEND A MUNICIPAL COURT PROCEEDING AND THE SUBSEQUENT VOIR DIRE OF THE JUROR DEPRIVED DEFENDANT OF A FAIR TRIAL.
QUESTIONING OF DEFENDANT BY THE PROSECUTOR AS TO WHETHER HE EVER CALLED 911 OR THE POLICE FOLLOWING THE INCIDENT VIOLATED HIS FIFTH AMENDMENT RIGHT TO REMAIN SILENT. (NOT RAISED BELOW).
THE EXCESSIVE SENTENCE IMPOSED UPON MR. ALFARO OF 212 YEARS MUST BE MODIFIED AND REDUCED.
THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW).
We have reviewed the arguments presented in light of the record and applicable law. We find no abuse of discretion or error, and affirm.
These facts are found in the trial record. On the evening of August 4, 2007, Natasha Aeriel, age nineteen, her brother Terrance Aeriel, age eighteen, along with Dashon Harvey, and Iofemi Hightower, both age twenty, spent the evening together. The Aeriels and Harvey attended Delaware State University, and were members of the university's marching band; Hightower planned to join the band upon enrollment there.
The four left Vailsburg Park when it closed and Natasha drove her friends to Mt. Vernon School. She parked in the schoolyard under a streetlight, near the steps. When she exited her car, Natasha noticed two short, fat Hispanic men, wearing white t-shirts and jeans, sitting on the bleachers, drinking Colt 45 and talking. The two were later identified as Godinez and Jovel. Natasha and her friends did not want to disturb anyone and stayed by the steps, playing the car radio, and dancing. Terrance went from the car to the monkey bars, approximately fifty feet away, passing the men on the bleachers as he walked.
At 11:30 p.m. Terrance, who "was standing on top of the monkey bars, " texted Natasha: "It's time to go." Natasha looked toward Terrance and saw four additional men enter the schoolyard and walk toward the bleachers. Three were Hispanic, wearing white t-shirts, and identified as defendant, Gomez, and Carranza; the fourth was African American, wearing a gray tank top, who later was identified as Baskerville. Natasha texted her brother, asking why they had to leave, but he was walking toward the car with a serious look on his face. Terrance walked past the men and Natasha saw Godinez and Jovel have a brief conversation with the other four. Convinced her brother was uncomfortable, Natasha knew it was time to leave. The four friends reached their car, with Terrance walking toward the driver's door.
The six men were standing in a circle talking. They were members of the Mara Salvatrucha gang, commonly known as MS-13. Directed by Godinez, the gang rushed toward the four friends. The assailants told them "to get the fuck on the ground, " then repeatedly ordered them to surrender everything they had, said "don't hold back, " and threatened that "if you don't give up everything, we will kill you right now." The four obeyed. Terrance and Harvey were lying face down on one side of the car while Natasha and Hightower were lying face down on the other. Natasha saw two assailants held handguns. Later evidence revealed Jovel had a .357 Magnum revolver and Gomez had an inoperable .32 caliber revolver. Also, defendant held a machete and Carranza a twelve-inch kitchen knife. The gang emptied the victims' pockets, taking identification, credit cards, valuables, and cell phones. One said, "you all got anything else on you all or I'm gonna kill you right here." So Natasha told them her purse was in the car. They rifled through her purse, searched her car, and ripped the gold chain from her neck.
Baskerville unsuccessfully attempted to remove Hightower's pants, then turned to Natasha, pulling down her basketball shorts. He and Carranza began digitally penetrating her. Natasha repeated "Jesus" over and over, and was told to "shut the fuck up." She did not resist because she was afraid of being killed.
During the sexual assault, Natasha looked under the car and saw Terrance and Harvey stand up and walk toward the nearby steps. She next recalled either a Hispanic or African-American attacker put his knee in her back, pulled her hair, and tried to cut her neck with a machete. Natasha screamed, fought back, and stood up. She did not see Hightower. She then heard two gunshots from the area of the staircase. Natasha moved toward the steps. Jovel emerged from the stairwell, saw Natasha standing, and ...