NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2013
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-09-1199.
Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
Before Judges Yannotti and Leone.
Defendant Derrick Rossi appeals from an order entered by the Law Division on January 4, 2012, which denied his petition for post-conviction relief (PCR). We affirm.
Defendant was charged with murder, N.J.S.A. 2C:11-3a(1) (count one); felony murder, N.J.S.A. 2C:11-3a(3) (count two); robbery, N.J.S.A. 2C:15-1 (count three); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count five). Defendant was tried before a jury.
At the trial, Daniel Pedroza testified that on February 4, 2001, he looked out a window on the second floor of his residence in Trenton and observed two men. Pedroza identified defendant as one of the two men that he saw from his window. The other man was later identified as Daniel Rojas. According to Pedroza, the men started pushing each other. When they were across the street from his home, Pedroza saw defendant grab Rojas by his coat. Rojas tried to pull away from defendant. Defendant swung at Rojas and hit him in the face.
Defendant then pulled out a gun. Pedroza said a shot rang out. Rojas fell, kicked his legs and tried to get away. Pedroza ran downstairs so he could call 9-1-1. Pedroza was on the steps inside his home when he heard a second shot. Pedroza went back upstairs, looked out the window and saw defendant running down the street. The police arrived shortly thereafter. Pedroza told the police what he had seen and gave the police a description of defendant. Rojas was taken to a hospital and pronounced dead.
Officer Jason Astbury of the Trenton Police Department was dispatched to the area. He observed a man walking across the street. The man matched the description that Pedroza had provided. Astbury stopped his vehicle and told defendant to stop. When he exited his car, defendant began to run. Astbury chased him and observed defendant enter a house. Astbury tried to enter but the door was blocked. Astbury ran to the rear of the house and looked up. He saw defendant in the window.
At the time, defendant was residing in the house with his girlfriend, Maria Pineda. She testified that she was in bed on the second floor of the house when defendant entered. She heard the officer outside calling to defendant and telling him to come out. Pineda went downstairs and saw defendant run into the kitchen.
Pineda testified that defendant repeatedly stated that he was sorry. Defendant ran into the living room and pushed a sofa in front of the door. He again told Pineda he was sorry. According to Pineda, defendant said "he thought he might have shot someone." The police forced their way into the house. The officers found defendant hiding in one of the bedrooms.
The jury found defendant not guilty of murder (count one), felony murder (count two) and robbery (count three), but guilty of the lesser-included offense of aggravated manslaughter (count one) and the two weapons offenses (counts four and five). The judge sentenced defendant to thirty-years for the aggravated manslaughter, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), ...