STATE OF NEW JERSEY v. KENNETH PAGLIAROLI



NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6153-05T46153-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH PAGLIAROLI,

Defendant-Appellant.

_________________________________________________


Submitted January 7, 2009 - Decided

Before Judges Stern, Waugh and Newman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-03-00335.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Steven M. Gilson,

Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was found guilty of aggravated manslaughter, armed robbery, conspiracy to commit both of those crimes, and possession of a weapon for an unlawful purpose. The court imposed an aggregate sentence of fifty years' imprisonment. On this appeal defendant argues:

POINT I - THE INADEQUATE JURY INSTRUCTIONS CONSTITUTE PLAIN ERROR.

(Not Raised Below)

A. The Trial Court Erred By Charging The Jury As To Aggravated Manslaughter And Reckless Manslaughter.

B. The Trial Court Erred By Not Relating The Law To The Facts Of The Case In Its Jury Instructions.

POINT II - DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO THE AGGRAVATED MANSLAUGHTER CONVICTION SHOULD HAVE BEEN GRANTED.

POINT III - THE ADMISSION OF OTHER-CRIMES OR "WRONGS" EVIDENCE, THAT DEFENDANT PLOTTED TO KILL HIS WIFE AND STEPDAUGHTER AND WAS "VERY VIOLENT" TO HIS WIFE, AND/OR THE OMISSION OF A LIMITING INSTRUCTION AS TO SAME CONSTITUTES PLAIN ERROR. (Not Raised Below)

POINT IV - THE ADMISSION OF HEARSAY TESTIMONY, REGARDING DEFENDANT'S HAVING THREATENED TO KILL THE DECEDENT, VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION AND CONSTITUTES PLAIN ERROR. (Not Raised Below)

POINT V - THE CUMULATIVE ERRORS MANDATE THAT DEFENDANT'S CONVICTIONS BE REVERSED. (Not Raised Below)

POINT VI - DEFENDANT'S SENTENCE MUST BE MODIFIED. (Partially Raised Below)

A. Consecutive Terms Should Not Have Been Imposed. (Not Raised Below)

B. The Conviction For Possession Of A Weapon For An Unlawful Purpose Should Have Merged With The Aggravated Manslaughter And Robbery Convictions.

We find the contentions do not warrant reversal and that only the following discussion is necessary. R. 2:11-3(e)(2). Rather than finding that defendant was prejudiced by any error, we conclude that he may have benefited substantially from the jury charge which may have spared him from a conviction of felony murder.

I.

The homicide and related offenses of which defendant was convicted occurred on September 3, 2003. They were alleged in counts three through seven of the indictment. Before trial counts one and two, relating to a prior burglary at the home of homicide victim Richard ("Pops") Maskevich, and count eight, relating to a conspiracy to kill defendant's wife after the death of Maskevich, were severed for purposes of trial. Evidence relating to these events were admitted at trial, however, as background and relevant to the crimes being tried.

The evidence before the jury included the following:

On July 14, 2003, at about midnight, Old Bridge Township police officer Joseph Gougeon was dispatched to investigate a burglary at the Maskevich house. Maskevich was a sixty-eight-year-old retiree who was known to some for selling cocaine and keeping thousands of dollars in his house. According to defendant's wife, Cathy, defendant had sold drugs for at least fifteen years, and had done so with Maskevich. Christine Miller, who had dated defendant's son Robert ("Bobby") Pagliaroli, also testified that defendant sold cocaine.

Cathy testified that she and defendant thought of Maskevich as their father, and he treated them like his children. According to Cathy, defendant had told her that Maskevich had named defendant as beneficiary of his estate and life insurance policies and that Maskevich wanted her and defendant to share the proceeds of Maskevich's estate.

After Cathy and defendant moved from New Jersey to Maine in 1994, she and defendant visited Maskevich frequently. They had their own bedroom in Maskevich's house and had access to the house by way of a key that Maskevich kept under a rock in the driveway. Maskevich regularly treated them, and their friends, to dinners, concerts, and trips to Atlantic City.

Cathy described Maskevich as a "good hearted man" who gave her and defendant anything they needed, including large sums of money. Cathy estimated that, over the years, Maskevich had given or loaned them anywhere from $60,000 to $80,000 and on several occasions Maskevich "bailed [defendant] out of jail."

Maskevich also supplied Cathy with cocaine and marijuana. Ever since Cathy was fifteen years old, she had battled a cocaine addiction. Maskevich often gave Cathy cocaine, and when he did not give it to her for free, she took it from him. Cathy and Miller both testified that defendant had been pressuring Cathy to stop using cocaine, and defendant got angry with her and with Maskevich because of her continued drug use.

In the summer of 2003, defendant took Cathy to meet Agent John Richards of the Maine Drug Enforcement Agency ("DEA") and said "this is what my father-in-law [meaning Maskevich] does to my wife." Defendant asked Richards to take some action to stop Maskevich from supplying Cathy with drugs.

Kathleen Hardy, who had been Maskevich's girlfriend, testified that Maskevich's house had been burglarized often. She recalled six or seven incidents during their relationship, but Maskevich reported only two of those incidents to the police. Similarly, Cathy testified that Maskevich had been "robbed several times through the years." Maskevich had two safes in the house. According to Hardy, Maskevich kept most of his cocaine in the basement safe. She said that Maskevich called it a "dummy safe" because too many people knew about it. That safe showed no signs of damage after the burglary on the night of July 14, 2003. The safe in the living room cabinet was the one that had been burglarized. There were no signs of forced entry to the house.

Detective Scott Crocco, of the Old Bridge Police Department, testified that the safe looked like it had been "hot wired open" because the wires to the keypad were connected together. Cathy testified that defendant had given Maskevich that safe, had installed it for him, and had showed him how to operate it. Maskevich told Crocco that only a couple of people, including defendant and Maskevich's son-in-law, Robert Gareis, knew about that safe and where it was located.

On July 18, 2003, Crocco spoke with April Gareis, Maskevich's daughter, who believed that defendant or Mark Gallucci, another man who had lived in the Maskevich house, probably committed the burglary. However, Maskevich told Detective Crocco that he did not believe that either man committed the burglary and that Gallucci did not know there was a safe in the living room cabinet.

Shortly after the burglary, Maskevich told Crocco that he no longer wanted the police to continue the investigation, and wanted to "settle this on his own." Thus, Crocco closed the investigation.

Maskevich's friend, Hector Bidot, testified that in July and August 2003 Maskevich was robbed "very often [,] on a steady basis." Maskevich believed that the burglar was someone close to him because the burglar was not breaking into the house. Bidot did not know how much money was taken, but Maskevich told him that on one of the occasions between $30,000 and $40,000 was missing from his house. Bidot helped Maskevich install a new safe in the living room cabinet after the burglary in July.

According to Bidot, Maskevich suspected that defendant was responsible for the burglary. Maskevich had told Bidot that Maskevich had marked his money and that defendant had repaid a debt to Maskevich with the marked bills. Bidot said that once Maskevich suspected defendant, their relationship changed. Bidot recalled one occasion after Maskevich spoke with defendant on the phone, Maskevich told Bidot that defendant "was trying to get his money," defendant had said "he was going to kill [Maskevich], sodomize him and be cruel to him," and that Maskevich didn't "know how cruel I can be."

Cathy testified that sometime between the end of June and middle of July 2003, Maskevich told her that he believed defendant had been robbing him. Initially she did not believe it and told Maskevich that defendant would not do such a thing. But, Cathy testified, she changed her mind after defendant came home one day in late July with "a Corvette and all kinds of money" and then told her during a phone conversation, sometime in July or August 2003 that he had robbed Maskevich. In that conversation, from his friend Richie Piperato's tattoo parlor in South Amboy, New Jersey, defendant told Cathy that he and Delphie ("Dee") Patton, a tattoo artist who defendant employed at his and Cathy's tattoo parlor in Maine, had gone to Maskevich's house, "went in the safe [and] took what they wanted. And then he said he flushed four or five ounces of cocaine down the toilet and left." He said that he did that because "[Maskevich] owed him for all the money [Maskevich] took from" defendant.

Following this phone conversation, Cathy called Maskevich and told him that defendant had been robbing him and that defendant was at Piperato's tattoo parlor in South Amboy. Maskevich then went to Piperato's and found defendant there. Maskevich was accompanied by Bidot who saw defendant give Maskevich a "stack of bills" which Bidot estimated to be $5,000.

Later that day, defendant called Cathy again "screaming and yelling" at her for telling Maskevich that defendant was at Piperato's tattoo parlor and that defendant had robbed him. Cathy believed that defendant made this second call from Jean Treacy's tattoo parlor, Think Ink, in Linden, New Jersey, and that "Dee" Patton was with him because she heard Dee and Treacy's voices in the background. Treacy was a friend of defendant and Cathy. Defendant told Cathy during this conversation that he had paid Maskevich some money for her drugs. When defendant returned to Maine, Cathy said that he "was really angry" with her and "threw [her] out" of the house, but that she moved back in shortly thereafter.

According to Cathy, after defendant told her that he had robbed Maskevich, Cathy wrote a letter to Maskevich on defendant's behalf because he had poor reading and writing skills. Defendant signed the letter and mailed it to Maskevich. The letter was postmarked August 2, 2003. Cathy testified that the letter began: "I feel very bad for you and all the problems you are having." Cathy believed defendant was referring to the burglaries. It continued:

I may have not told you. I won $45,000 in 6/9/03 [sic]. I used it -- a friend of mine to absorb the taxes because of SSI because I'm not supposed to gamble because I will lose my medical. That's where I got the money for the [Corvette]. I feel really fucked up for you saying I robbed you, your house. Since then I've won more money. Since seeing that you ripped me and my wife's marriage apart and wanted her to revoke my bail for the second time even before your house got robbed, you can go fuck yourself.

The letter continued:

If in any shape, form or way you think I did this to you and tried to . . . hurt me and shape, form or way [sic], your drug world and you will come to an end the second [sic]. Go fuck yourself. Not your friend anymore.

Cathy testified the reference to Maskevich's drug world coming to an end meant that defendant was going to stop supplying Maskevich with cocaine and was going to turn Maskevich in to the DEA.

Other witnesses also testified that Maskevich told them he believed defendant had been robbing him in the summer of 2003 and that Cathy told Maskevich that defendant had been robbing him.

Melissa Rowe, a friend of Cathy and defendant who lived in Maine, testified that around Christmas 2002, she overheard defendant ask Dee to go to New Jersey with him "to get some money off Pops." Rowe further testified that defendant and Cathy had been arguing, and she heard him tell Dee that "the bitch better shut her mouth or, he says, I got an insurance policy on her, I'll take her out."

Rowe said that every time Cathy and defendant visited Maskevich, Maskevich gave them money, "[s]ometimes [$]1,200, sometimes [$]10,000", but that during the summer of 2003, Maskevich refused to give defendant any more money, and their relationship soured. Rowe also testified that in the summer of 2003, defendant was pressuring Cathy to stop using cocaine, but that was because the police were "coming around," and "things were getting hot."

On Wednesday, September 3, 2003, just before 9 p.m., Old Bridge Township police officer Thomas Noble was dispatched to Maskevich's house because his tenant had not seen or heard from him. The doors to the house were locked, so Noble forced open the sliding plexiglass door and went inside. He walked into the master bedroom and found Maskevich lying face-up on the bed with two bullet holes in his head. Based on Maskevich's body temperature, the Medical Examiner determined that he had been dead for about twelve hours before Officer Noble found the body. According to Detective Crocco, the evidence suggested that the shooter had keys to Maskevich's house. There was no damage to the doors or windows, and the basement door, which was the door that people typically used, had been locked from the outside.

Detective John Haley, of the Middlesex County Prosecutor's Office, testified it appeared that the shooter had "search[ed] for something." According to Haley and Crocco, the drop-ceiling tiles in the master bedroom had been "pulled down from the ceiling" and "scattered" on the floor. Crocco further reported that the dresser drawers "were all pulled out." A film canister with what appeared to be cocaine and Maskevich's wallet with only $2 in it were found "on the staircase going to the second level."

It looked to Crocco as if someone had struck the door to the basement safe with a hammer that was found on the floor below the safe. However, the key and a slide bar that opened the safe had not been damaged, and the door was open, thus suggesting that "it could have been opened with a key." Marks on the floor near a furnace that "was not hooked up" suggested that the furnace had been "dragged" to cover or conceal that safe.

The safe in the living room cabinet was locked and did not appear to have been tampered with. Old Bridge Detective John Kanig used a pry bar to open it. Inside was a key to the safe and $37,000.

The police found no fingerprints at the scene, but they did find several footprints inside and outside of the house. Police seized two video tapes from the surveillance system, but there is no evidence in the record as to their content. Police also found a gun in the living room and one in the bedroom, near the foot of the bed. The police never investigated whether the weapons were registered to anyone. .22 caliber projectiles were also found at the scene, and Detective Gary Mayer, an expert from the Somerset County Prosecutor's Office, testified based on all the evidence presented, that the casings came from a Herrington and Richardson, Clerke or F.I.E. handgun.

Police also found the letter to Maskevich that Cathy had written on behalf of defendant, postmarked August 2, 2003. In the envelope with the letter were forms "stating various winnings" from Foxwood Resorts Casino. One was in defendant's name, and the rest were in Dee Patton's name.

Police also found a recording of a voicemail message that defendant had left on Maskevich's answering machine. The message said:

You know, you keep filling Cathy's head full of shit. She told me she's moving to New Jersey. Okay? And she also told me that you're saying I got a thirty five thousand dollar car? 1984 Corvette, salvaged title. Look and see what it's worth. She keeps comin' to my shop flippin' out over this fuckin' girl that you're saying. Delphi Patten [sic] is not a girl. It's a fuckin' guy. Keep interfering with my fuckin' life, you motherfucker. What do you want to do? Bring her there and turn her into a coke whore, like you did the last Cathy? I'll tell you what mother fucker [sic]. You want problems with me, now you got fuckin' problems with me. Okay? Now, let's see what the fuck goes on with your life, motherfucker. Don't fuck with me, bitch.

Presumably the other Cathy to whom defendant was referring was "Kathy" Hardy, Maskevich's former girlfriend. Hardy testified that she had left Maskevich after eleven years, and moved in with defendant and Cathy in Maine because she had a cocaine addiction and could not stop using cocaine while she was with Maskevich. According to Hardy, Maskevich "was heavily into dealing cocaine."

Within a week of Maskevich's death, police went to Jean Treacy's house in Linden, to look for Dee Patton. The police had heard that Dee had been living in a room in Treacy's basement and working as a tattoo artist in the Linden parlor. Treacy was not home when the police arrived, but her boyfriend, Scott Zamora, was. He told police that Dee had "packed up all his belongings and left the residence" "several days prior."

Later that evening Detective Crocco returned to Treacy's house, and she consented to a search of Dee's room. During the search, the police found two latex gloves, two spent .22-caliber shells, prescription drug bottles in Maskevich's name, and an envelope addressed to David Paterson an alias used by Dee with a Hutchinson, Kansas, return address. Treacy told police that Dee had taken her van and that she was "in the process of reporting [it] stolen."

Treacy also testified that, before his departure, Dee had been acting strange and said he wanted to kill himself. According to Treacy, on Monday, September 1, 2003, defendant came to her house around noon to meet Dee. Defendant was "quite angry at Cathy," but he did not say why. He stayed at Treacy's house for about fifteen minutes and then left with Dee. Later that day, Cathy showed up at Treacy's house and was angry because defendant "had left without her." Treacy said that Cathy and defendant were "constantly" doing things "behind each other's backs" and that, during the summer of 2003, there were "several" times when defendant and Cathy, alone and together, made unannounced visits to her tattoo parlor and told her not to tell "Pop" that they were in town.

Christine Miller testified that Dee visited her apartment in Maine at about noon on Monday, September 1, 2003. As previously noted, Miller was the former girlfriend of defendant's son, Bobby, and was also a friend of Dee's and worked at the defendant's tattoo parlor. Miller said that Dee had been using cocaine, and that he was "wicked anxious, excited, off the wall" and "he acted like he was losing his mind." He showed her a four-pointed key to a safe, which she said resembled a screwdriver. He stated it belonged to "Pop."

Miller testified that she and Dee drove to Terrance ("Critter") Stymiest's house, and they stayed there about ten to fifteen minutes. When Dee and Miller went back to Dee's van, he placed "a gun and a box of bullets between the seats."

Stymiest testified that he had loaned Dee a Harrington and Richards nine-chamber .22-caliber revolver and that he gave Dee a box of fifty .22-caliber long bullets. Miller described the gun as having a long rotating chamber and being black with a brown handle. The box of bullets was green and it said "thunderbolt" on it. At trial Miller and Stymiest identified a box of bullets as being similar to the box that Stymiest had given to Dee.

After leaving Stymiest's house, Miller and Dee stopped to buy drugs at the home of a friend of Miller's, and then they went back to Miller's apartment. Dee left later that day. That was the last time that Miller saw him. He called Miller, however, late Monday night or early Tuesday morning and then again on Thursday.

Treacy testified that she saw Dee on Monday, September 1, and Tuesday September 2, 2003. On Tuesday he "acted angry" and as if "he was forced to go somewhere he didn't want to go." Treacy saw defendant again on Thursday, September 4, 2003. On that day, he was talking to her husband at her tattoo parlor and "seemed nervous." On Friday, September 5, 2003, Treacy left New Jersey to attend a tattoo show. Just before she left, she saw Dee sitting in front of the parlor. He appeared "very nervous, very paranoid, very scared, desperate."

On September 7, 2003, New Jersey police notified Kansas authorities that Dee was a suspect in a murder investigation and that they believed he was fleeing to Kansas. On September 8, 2003, Dee arrived at Kimberly Hicks' trailer home in Hutchinson, Kansas, and the next day he was arrested. He was charged with Maskevich's murder on September 11, 2003.

Sometime thereafter, John Haley of the Middlesex County Prosecutor's Office received a box of evidence from Kansas. It included an OxyContin prescription in Maskevich's name; a Maine tattoo license for Delphie Patton; Dee's Mohegan Sun player's card; "a bag containing drugs and paraphernalia"; a cellular phone; a tax reporting form for gambling winnings from the Mohegan Sun, one for $2,250 on June 23, 2003, and the other for $1,600 on June 23, 2003; a June 23, 2003, room-service receipt in defendant's name from the Mohegan Sun; a box containing thirty-nine .22-caliber Thunderbolt long rifle bullets; and a couple of pairs of tennis shoes. One of the tennis shoes matched a casting of a footprint found in Maskevich's basement.

It was stipulated by the parties that on October 31, 2003, Dee was found hanging in a jail cell in Kansas, and that authorities concluded that he had committed suicide.

Cathy testified that on the night of Tuesday, September 2, 2003, she attended a dance class with her daughter. After she arrived home, defendant told her that, while she was out, her friend Karen Lloyd had called from New Jersey. Defendant said that Lloyd and Maskevich were "coming up [to Maine] and [defendant] and [Maskevich] were going to make up."

Lloyd testified that she had called Cathy earlier that night and that she had asked defendant to let Cathy know that she had called. But she did not testify that she had said that she and Maskevich were planning a trip to Maine, and during the trial nobody asked her if she and Maskevich had made such plans. Lloyd further testified that defendant called her back a few minutes later and said that if she "talked to anyone," she should tell them that she "talked to him" on the phone. Lloyd did not think it was "a strange conversation" at the time.

After talking with defendant, Cathy took Xanax and anti-depressants and went to bed. She said that she had other medications that defendant wanted her to take, but she refused because she could not function when she took them. She said that defendant went to bed with her, which was unusual. He usually stayed up to watch television or play on the computer.

The next thing Cathy recalled was being awakened by defendant. Defendant "nudg[ed]" her leg, and yelled that "Pop was dead, that Dee had shot Pop." Defendant was "whispering" on the phone with Dee when he woke her. He said to Dee "you shot him?" and then he said "shoot him again." After that defendant asked Cathy where Maskevich kept "the pot and the coke and stuff." She answered him, but testified "the pot and the coke" were not where she thought they were because "they [defendant and Dee] didn't get it."

Defendant then stated he was leaving to call Dee from a pay phone. He told Cathy not to call Dee, but after defendant left, Cathy called him. She said that she just "wanted to know what had happened," and Dee threatened that she "would go to jail with the rest of us" if she said anything. They spoke only briefly because Dee said that he had another call he had to answer. After that Cathy called him again and left a voice message "telling him, look, we need to take care of this, something has to be done. I need to talk to you. You tell me what went on here." Dee called her back and told her "that he fucked up." Before he could say more, she hung up the phone because she heard defendant coming in the house and he had told her not to call Dee. After that Cathy took another Xanax and tried to sleep.

The records of the cell phones of defendant, Cathy and Dee showed that on Wednesday, September 3, 2003, various calls were made between Cathy and Dee, and defendant and Dee, between 2:25 and 4:14 a.m.

Defendant's son, Bobby, testified that at about 10:00 on the morning of September 3, 2003, he went to defendant's and Cathy's apartment with his girlfriend Wendy Bolduc. They both testified that Cathy was sitting on the couch, "rocking back and forth, hysterical," and appeared to have been crying and she said that "something bad had happened to" Maskevich. Defendant was there, and he appeared upset, but he did not say much.

Cathy recalled Bobby's visit to the apartment that day, but she said that not much had happened. She sat in the apartment crying throughout the day, while defendant worked in the tattoo parlor, which was below their apartment in the same building. She said that defendant told her "don't open [your] mouth" and she did not say anything to anyone. She complied because defendant was "a very violent person. He stuck guns to [her] head and beat [her]." Defense counsel developed that when defendant once put a gun to her head, she "defend[ed]" herself by trying to stab him and run him over with a car. Cathy's older daughter, Shannon Burns, and Miller also testified that it was normal for defendant and Cathy to fight, and defendant's brother Barry said that sometimes their fights were violent.

On Thursday, September 4, 2003, Bobby and Bolduc went to Miller's apartment and told her that Cathy thought something had happened to Maskevich. According to Bobby and Bolduc, Miller said that she thought she knew what had happened. According to Bobby, Miller told him "that Cathy and Dee had a plan to rob [Maskevich], and that [defendant] was procrastinating on it, so they went behind his back and did it." Miller believed that Dee had shot Maskevich.

Miller testified that Bobby had visited her apartment on Thursday, September 4, and she told him at that time everything that Dee had said to her. Later that day, Bobby returned with defendant, and defendant instructed her to not say things that would make him "look guilty." On the same day, Miller went to stay with defendant and Cathy at their tattoo parlor because she was "afraid" that Dee would try to hurt her.

Cathy testified that at about 6:00 p.m. on Friday, September 5, 2003, defendant left to meet Dee at the Mohegan Sun Casino in Connecticut. Defendant told Cathy that he was going to "bring a gun because he [defendant] said [that] he knew Dee was going to bring a gun" and that defendant was "going to take care of Dee."

Stymiest testified that just after Maskevich was killed, defendant came to Stymiest's house and asked to borrow a gun. Defendant told him that Dee had killed Maskevich and that defendant was afraid that Dee was going to kill him. Defendant instructed Stymiest not to answer the door if Dee came to his house. Stymiest refused to give defendant a gun.

Detective David Caron, of the Waterville, Maine Police Department, testified that defendant had a bank safety deposit box and that the last time that he opened it was September 5, 2003. He emptied it at that time. No testimony was offered on what defendant kept inside the safety deposit box.

Mohegan Sun records reflected that defendant was at the casino on September 5, 6 and 7, 2003. A video surveillance tape from the casino showed Dee and defendant together on those dates.

On Saturday, September 6, 2003, Cathy and her friend Ann Kerby left Maine to attend Maskevich's funeral in New Jersey. They stopped at the Mohegan Sun to have lunch with defendant. During the drive to the casino, Cathy talked to Dee on her cell phone. She testified that she had told him that she "wanted him to turn himself in" to the police and that if he did not do it, she would. She said the same thing on her cell phone calls to defendant.

When Cathy and Kerby arrived at the casino, defendant told her that "there was nothing that he could do" because "Dee came with a gun." After lunch, Cathy and Kerby continued driving to New Jersey. Again, she spoke with Dee on the phone and tried to convince him to turn himself in to the police.

Cathy drove directly to April Gareis' house in Lawrence Harbor, New Jersey. She arrived at about 8:45 p.m.. Crocco was waiting there to question her. She gave a voluntary statement at that time, and she did not tell the police that defendant was involved in the murder because she was "scared." Indeed, she said that she knew that he was "innocent." She also did not tell the police either in New Jersey or Maine about the various phone calls that she had made with defendant and Dee.

On Sunday, September 7, 2003, Cathy and defendant attended funeral services for Maskevich. The next day, September 8, 2003, Cathy and Kerby drove back to Maine. Cathy saw defendant again on September 11, 2003, when he came home to Maine to celebrate their wedding anniversary.

Later that day, defendant was arrested in Maine in relation to the Maskevich murder, and he gave a statement. A recording of the statement was played to the jury, but a transcript of it is not in the record on appeal. However, Crocco's cross-examination reveals some information about the statement.

In the statement, defendant discussed the meeting that he had with Maskevich at Piperato's tattoo parlor and said that Cathy had told Maskevich that he was there. In an apparent effort to explain the money that defendant gave to Maskevich, defendant said that he had won some money at a casino on July 6, 2003. Crocco had gathered W-2G tax statements on the winnings, in the documents mailed to Maskevich, but Crocco said that he did not know the total of the winnings off the top of his head. Counsel went through the statements, and they totaled $21,500.

In his statement, defendant admitted to signing and sending the August 2, 2003, postmarked letter to Maskevich. He said that he had sent it because he was angry with Maskevich for giving Cathy drugs and for accusing him of stealing from Maskevich. Defendant told Crocco that Cathy was bipolar and that he "couldn't deal with" her when she was using cocaine. He said that he was angry with Maskevich for supplying Cathy with drugs, and that he had reported it to a Maine DEA agent named John. On redirect examination, Crocco testified that a DEA agent never contacted him about Maskevich.

Defendant also told Crocco that when Maskevich accused him of robbing his house, defendant responded that "it was impossible because he and Mr. Maskevich were gambling in Atlantic City at that time." Maskevich had told Crocco that Maskevich was at a local bar during the July 14, 2003, burglary.

In the statement, defendant also admitted to Crocco that he had spoken to Dee on the phone while he drove to the Mohegan Sun Casino after the homicide. Defendant said that Cathy had given him Dee's phone number.

As already noted, Cathy also gave a statement on September 11, 2003, when defendant was arrested. She said that she had lied during her first statement, but again she did not say that defendant was involved in the homicide. She testified that "Ken and them told me that I would be implicated because I didn't didn't open my mouth when I should have and say that it happened." In her first statement, Cathy told the police that she did not hear about Maskevich's death until the following Thursday. In her second statement she said that Miller had told her that Dee went to Maskevich's house to "steal whatever he wanted to steal," but not to murder him.

Cathy's second statement was tape recorded, but there was an hour-and-a-half "gap" in the questioning. Cathy testified that the police stopped the interview because she was upset and didn't know if she "was doing the right thing." During that break, the police convinced her that defendant was "trying to kill" her. She later conveyed that to defendant, defendant's brother Barry, "and maybe Uncle Ralph" (defendant's brother Ralph). She also told defendant's attorney that the New Jersey police had told her that if she did not "cooperate" with them, she would be "charged with conspiracy to commit murder."

On September 25, 2003, while defendant was incarcerated, Cathy wrote him a letter saying that it was "really sad" that the witnesses in the case were "not telling the truth." At trial she testified that she still believed that defendant was innocent when she wrote that letter and was upset because he "was going to have to sit in jail longer."

On September 30, 2003, Cathy wrote another letter to defendant, this time saying that she felt "terrible" because of the "mess that [she] had put him in." She wrote: "I want you to understand I'm really afraid of them. They harassed me for three and a half hours, threatening me, telling me you and Dee were going to kill me."

On October 8, 2003, Cathy told police that she believed a "motorcycle gang" had committed the murder. She also added to her story that the day before the murder, Dee bought two guns from Critter and that Dee spent the day using cocaine with Miller. Cathy also informed police that she was under the care of a psychiatrist.

On October 13, 2003, Cathy left a threatening message on Jean Treacy's answering machine saying: "This little game your husband is playing is not going to work." Treacy's husband, called "Redneck," was a member of the Pagan motorcycle gang. Cathy testified on cross-examination that when she left that message, she believed that Dee and Redneck had killed Maskevich. She testified that defendant, Dee and Bobby had convinced her that the Pagans were going to "come after" her, and that at this time she believed that defendant "did not have anything to do with the murder of [Maskevich]."

On October 15, 2003, Cathy contacted the police and told them that she had a recent meeting with her psychiatrist, and he said that the police should not believe anything she says because of the medication she was taking. At trial Cathy said that her doctor believed that she was taking all of her medication, but she in fact was not doing so. She testified that in September and October 2003, she was "very confused" and had told her psychiatrist that. She also told him that the police were "badgering" her and "trying to convince [her] to come to New Jersey and testify against [her] husband."

On October 16, 2003, Cathy spoke with Treacy on the phone. Cathy did not know it, but the conversation was being recorded. She told Treacy three times that defendant did not kill Maskevich, and "is not guilty of having murdered [Maskevich]" and she said that she knew Dee "had been running all kinds of errands" for Treacy's husband.

The next day, Cathy called the police and said that the Pagans had placed a "hit" on her life. She testified that Kathy Hardy gave her that information after overhearing two bikers at a bar in New Jersey. Cathy said that "[e]everybody in the family felt" that the Pagans were going to travel to Maine and "wipe out" her "entire family."

On October 24, 2003, after police heard Cathy's threats to Treacy, Cathy was arrested at her tattoo parlor in Maine for witness tampering and hindering the apprehension of defendant. Before police took Cathy into custody, they let her make some phone calls from the tattoo parlor. The phone rang after she made a call, and Detective Caron heard what sounded like defendant's voice say about three times "don't say a fucking word." At the police station Cathy said that Maskevich's murder was a "Pagan hit" because that's what she "believed" at the time.

On November 20, 2003, Cathy gave another statement to police, this time contending that Dee and defendant had planned to rob Maskevich in the beginning of September and that when Dee called defendant during the robbery, defendant said "I'd shoot him again or shoot him again." This was the first time that she implicated defendant in the homicide.

Cathy subsequently made another tape recorded statement, which she gave to Barry. In that statement she said that the police had harassed her and threatened to put her in jail, and had told her that defendant wanted to kill her and she was "scared." But at trial, she testified that the officers never harassed her, and said she had lied about that.

On direct examination Cathy also testified she was arrested and placed in the Middlesex County Jail, but that no promises were made to her in exchange for her testimony. However, on cross-examination she said that the prosecutor had told her that she would either be charged with conspiracy to commit murder or cooperate and be out of jail by next Monday. Shortly after Cathy gave her November 20, 2003, statement saying that defendant told Dee to "shoot him," she was released and the charges against her were dropped.

Hardy testified that she visited defendant in jail in late September after he was arrested. According to Hardy, he told her that he and "Dean" or "Dee," drove to "Pops" house, went inside, took between $60,000 and $65,000 and flushed a couple of ounces of cocaine "down a toilet." They did so because Maskevich had given Cathy "too much drugs, and [defendant] was ending up paying for it."

Hardy also testified that Maskevich had some hostile incidents with Redneck. She recalled one occasion when Maskevich "threw a gram of coke" at Treacy and "hit her right in the eye," thus angering Redneck. Before Hardy left Maskevich in March 2002, Maskevich had asked defendant "a few times," to "intercede on [Maskevich's] behalf" with Redneck. Hardy testified that Maskevich was getting threatening phone calls and though he did not say who was making them, she inferred that it was Redneck. When Hardy last spoke with Maskevich, he said that he was again having trouble with Redneck. However, Maskevich's friend Robert Monte testified that in the summer of 2003 there seemed to be "no problems" between Maskevich and Redneck.

Ralph Anthony DeSimone testified that he had met defendant in jail in New Jersey after defendant had been charged in relation to this incident and that defendant made some incriminating statements to him. DeSimone was serving a sentence in Rhode Island for a robbery conviction at the time of defendant's trial. He had a long criminal history consisting mainly of robbery and drug offenses. He said that defendant "constantly" talked about the charges against him, claiming at first that he had been "framed" for the murder and robbery of "a good friend of his, 'Pops'" Maskevich. But "after a while," defendant started to tell DeSimone he wished he "did things differently" when he "sent Dee to rob Pops."

Defendant allegedly told DeSimone that Dee "flipped out . . . [a]nd he ended up shooting Pops in the head." Maskevich did not die, and Dee called defendant while Dee was "bugging out." Defendant told him to "put another one in his head," but Dee did not want to do it.

According to DeSimone, defendant said that Cathy was the person who "started the whole thing." "She's the one that wanted to push to get this robbery to take place because she wanted the cocaine . . . [defendant] was okay with that because he wanted the money." Defendant expected to get "approximately $30,000" from the robbery, and Dee and Cathy were going to get cocaine.

Defendant told DeSimone that he was "in a bar somewhere in Maine," when the robbery and murder occurred. Two guns that were purchased from a "supposed biker friend" of defendant's were used, namely a .22-handgun and a rifle. Defendant said that Dee had shot Maskevich in Maskevich's bedroom, and "there was a possibility" that Cathy may have been with him, but defendant "couldn't prove it either way." Defendant also told DeSimone that after Dee was arrested, "he hung himself in jail."

According to DeSimone defendant said that he expected Cathy was going to testify against him, and that angered defendant. He told DeSimone "I'd like to kill the bitch," and he asked DeSimone if DeSimone would help him do it after DeSimone finished his sentence, although DeSimone "wasn't sure of when [he] was getting out." According to DeSimone, defendant wanted him to give Cathy "some poison crack." Defendant also mentioned a young girl who was seventeen or eighteen years old and who "started as [his] stepdaughter" and who turned into "his lover." DeSimone testified that defendant never really explained his relationship with the girl, but he wanted to "[g]et her out of the way also" because she was also "going to be involved probably testifying against him."

DeSimone contacted the prosecutor's office to notify it of defendant's admission and solicitation. In exchange for his cooperation, DeSimone's bail was lowered and he was released from the Middlesex County Workhouse.

To discredit DeSimone's testimony, defendant cross-examined DeSimone and called Drago Rodriguez as a witness. Rodriguez was defendant's cellmate in the Workhouse when defendant met DeSimone. He testified that defendant kept the discovery that he received in this case under his bed and that during the day the cell doors were "open all day long" so that anyone could enter the cells. Rodriguez recalled walking into the cell that he shared with defendant and finding DeSimone "searching" through defendant's papers that were "under the bed." DeSimone told Rodriguez that defendant had given him "permission to put some type of paperwork under the bed." Rodriguez did not mention it to defendant until after DeSimone had been released. Defendant denied that he had given DeSimone such permission.

Rodriguez also testified that defendant told him that Cathy was going to provide evidence against him but that he "still had love for her."

Cathy's daughter, Shannon Burns, testified for the defense. Burns testified that on the night of Maskevich's murder, she was awakened because defendant and Cathy were arguing "really loudly" in their bedroom. Her bedroom was only "maybe two steps" away from theirs. Burns testified that she was "positive" she did not hear defendant say "shoot him again." She testified that "that's something I would I would remember. That's something like out of the ordinary. But I never heard any certain phrases or words or anything."

Burns was eighteen at the time of trial, and testified no one had interviewed her in relation to these crimes until January 2006. Cathy had told her that that was because she was "under age."

Defendant's brother Barry testified that Cathy told him that the police told her during one of her interviews that defendant was "going to try to kill her." She also told Barry "that the police told her to say that Kenny said shoot him again" when Dee called him during the burglary. Cathy also told Barry "she's afraid of the Pagans."

Defendant's younger brother, Dean, testified that, in April 2003, Cathy had once solicited him to burglarize Maskevich's house and to steal money from Maskevich. She told him that it was easy to do. Dean believed that Cathy had solicited him because he was "laid off from work" and she thought he needed some money. About a week before Maskevich's murder, Cathy asked him again if he "want[ed] to go with her" to rob Maskevich. He testified that he did not report her solicitation to the police because she had been arrested and he believed that the police would take care of her. After the police dismissed the charges against her, he decided to speak out.

Like Barry, Dean also testified that Cathy had told him that the police had pressured her to say that defendant had said "shoot him again." Dean said that defendant had been trying to get Cathy off of drugs; Dean did not believe that defendant supplied her with them.

Barry gave Dean a tape recording of Cathy's discussion with him, and Dean arranged to have it turned "over to the proper authorities." However, he could not account for what happened with the tape. Dean also said that defendant and Maskevich were "very good friends," but they argued and cursed at each other "all the time." He said they had "a love/hate relationship." Defendant's son Bobby similarly testified that defendant and Maskevich were like "father and son" and fought and would swear at each other "all the time."

Finally, there was testimony about whether defendant owed Maskevich $25,000 at the time of his death, money given to defendant at some undisclosed time. Hardy testified that she was "right next to him" and saw defendant repay that money to Maskevich in June 2002 when Maskevich came to visit defendant and Cathy in Maine. Cathy, however, testified that defendant never repaid Maskevich the $25,000 bail money.

II.

Defendant contends, for the first time on appeal, that his conviction must be reversed because evidence of other bad acts prejudiced the jury against him and amounted to plain error. Specifically, he challenges DeSimone's testimony that defendant had asked DeSimone to kill Cathy by giving her poisoned crack cocaine. Defendant also challenges Cathy's testimony that defendant was "a very violent person" who "stuck guns to [Cathy's] face and beat [her]," and the testimony of Melissa Rowe, who knew Cathy and defendant from their tattoo parlor in Maine. As noted above, Rowe testified she overheard defendant say to Dee that "the bitch better shut her mouth or, he says, I got an insurance policy on her, I'll take her out."

The State contends that the evidence of defendant's plotting to kill Cathy was relevant and admissible as to defendant's consciousness of guilt. Alternatively, it contends that the evidence was part of the overall criminal event and, thus, admissible as res gestae evidence.

Our Rules provide:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[N.J.R.E. 404(b).]

Consciousness-of-guilt evidence is admissible. State v. Hill, 47 N.J. 490, 500 (1966) ("threats made to a witness with the intent to induce him to stay away from a trial or not to appear to testify against the accused are admissible in evidence under a theory that any conduct of the accused inconsistent with his claim of innocence is admissible in evidence."). Moreover, events surrounding the event in question and the relationship of witnesses to the defendant and to each other are admissible to affect questions of credibility, so long as its probative value is not outweighed by its prejudice or has the capacity to divert the jurors' attention from a fair consideration of the issues in dispute. See, e.g., N.J.R.E. 403; State v. Koskovich, 168 N.J. 448, 486 (2001).

To be admissible for one of it's proper uses, the bad-acts evidence "must [1] be admissible as relevant to a material issue; . . . [2] [be] similar in kind and reasonably close in time to the offense charged; . . . [3] be clear and convincing; . . . [and 4] [t]he probative value of the evidence must not be outweighed by its apparent prejudice." State v. Cofield, 127 N.J. 328, 338 (1992). See also Koskovich, supra, 168 N.J. at 483, 485-86. It is, of course, well established that a defendant's intent to silence a witness who will testify against him is admissible under N.J.R.E. 404(b) to establish defendant's consciousness of guilt. See, e.g., Hill, supra, 47 N.J. at 500; State v. Buhl, 269 N.J. Super. 344, 364-65 (App. Div.), certif. denied, 135 N.J. 468 (1994).

DeSimone's testimony was admissible because DeSimone said that defendant wanted to poison Cathy and get rid of Burns to keep them from testifying against him. Moreover, some of Cathy's testimony now the subject of objection was introduced on cross-examination. Rowe's testimony that defendant told Dee that defendant would "take [Cathy] out" if she did not keep her mouth shut also established consciousness of guilt and thus was admissible for that purpose.

We recognize that the Supreme Court recently reversed a conviction because of the introduction of "other crimes" evidence. However, not only was that evidence of prior bad acts introduced despite the fact the trial court concluded it was inadmissible, but it included acts of domestic violence, and "the domestic-violence restraining-order testimony bore an additional stigma it told the jury that a judge had found defendant guilty of domestic violence in [the] matter. That evidence not only fostered the suggestion that defendant was guilty of the charges against him, but told the jury that a judicial officer believed the victim, thus bolstering her credibility," State v. Vallejo, __ N.J. __, __ (2009) (slip op at 16). "Standing alone, the domestic-violence-restraining-order evidence was highly damaging to [defendant's] case." Id. (slip op at 17). Moreover, the Vallejo trial was "short," "only three witnesses testified," throughout the trial, "the three witnesses against defendant made him out to be a repetitive perpetrator of domestic violence," and "the jury was told that a judge had already issued a restraining order based on the facts alleged. . . ." Id. (slip op at 22). This case is nothing like Vallejo.

In any event, "[e]vidence claimed to be unduly prejudicial is excluded only when its 'probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the issues in the case." Koskovich, supra, 168 N.J. at 486 (quoting State v. Thompson, 59 N.J. 396 (1971)).

Because there was no objection to the testimony now challenged and because most of the evidence was admissible to provide background and develop credibility issues, we cannot find plain error warranting reversal. See R. 2:10-2. It may well be that defendant decided not to challenge the admission of the testimony because it was necessary to shed bad light on the background and credibility of the State's witnesses. Most of it explained the relationship of the witnesses to defendant, and to each other, and may have been perceived as affecting credibility. Some of it was developed by defendant on cross-examination and was relevant to explain the changes in Cathy's statements and beliefs.

Defendant further contends that the court erred in not giving the jury a limiting instruction on the appropriate use of the bad-acts evidence. He contends that the evidence against him was weak, turning almost exclusively on Cathy's testimony, and that the lack of instructions also created plain error. Defendant is indeed correct that our Supreme Court has said that when evidence of other bad acts is presented to a jury, "the court must instruct the jury on the limited use of the evidence." Cofield, supra, 127 N.J. at 340-41. See also Vallejo, supra, __ N.J. at __. However, a trial court's failure to sua sponte give a limiting instruction on the proper use of prejudicial evidence is subject to the plain error standard, just like any other error that a defendant did not object to at trial. See State v. Montesano, 298 N.J. Super. 597, 617-19 (App. Div.), certif. denied, 150 N.J. 27 (1997); State v. Johnson, 287 N.J. Super. 247, 262 (App. Div.), certif. denied, 144 N.J. 587 (1996) (finding no plain error where a defendant challenged for the first time on appeal the absence of a limiting instruction on the proper use of consciousness-of-guilt evidence); N.J.R.E. 105 (waiver).

As in Johnson, supra, 287 N.J. Super. at 262, after "effective" cross-examination of the State's critical witnesses, Cathy Pagliaroli, who had a motive to protect her own interest from a murder charge, and DeSimone who had a motive to obtain favorable treatment from the prosecutor, "[d]efense counsel could reasonably have decided to overlook [the omission of a limiting instruction because it] . . . could have unduly emphasized a portion" of the testimony implicating defendant in Maskevich's death. Thus, we find no basis for a reversal on plain error grounds because the trial judge did not instruct the jury on the limited use of bad acts evidence. Moreover, there was more than sufficient evidence to support defendant's conviction of the murder of Maskevich based on admissible evidence independent of testimony that defendant was a violent person or performed other bad acts.

The issue of credibility was clearly before the jury and the credibility of the consciousness-of-guilt evidence was clearly related to the assessment of the witness' credibility. There was extensive cross-examination of State's witnesses. Rodriguez was called to rebut DeSimone's testimony, and defendant's brothers and Cathy's daughter rebutted Cathy's testimony which could be understood as the basis for exculpating herself. Defense counsel could have reasonably made a strategic decision not to request a limiting or curative instruction on defendant's violent behavior towards Cathy so as not to detract from successful attacks on her credibility.

We affirm defendant's conviction without prejudice to development of the "other bad acts" issue, including the failure to object to evidence or request limiting instructions, in a petition for post conviction relief.

III.

Defendant contends that the admission of Bidot's testimony that defendant had threatened to kill and sodomize Maskevich also constituted inadmissible hearsay.

After Bidot testified that defendant's relationship with Maskevich had changed during the summer of 2003, the prosecutor asked Bidot whether he had ever heard "any conversation that took place between Mr. Maskevich and [defendant]." Bidot answered that he was with Maskevich when Maskevich and defendant had a telephone conversation and that

Richard [Maskevich] got off the phone and said that he was trying to get his money. And Kenny said that he was going to kill him, sodomize him and be cruel to him. He says you don't know how cruel I can be. That's what Kenny said. That's what Richard said, that you don't know how mean I can be. That's what [Maskevich] told me that Kenny says to him.

Defendant did not object to the testimony.

The prosecutor asked Bidot whether he was aware of any loans that Maskevich had made to defendant. Bidot answered yes and briefly discussed them. Then the prosecutor returned to the alleged telephone conversation between defendant and Maskevich:

Q Based on the phone conversations that you heard between Richard and Kenny, how did Richard feel that time?

A Which conversation was that?

Q When you said that Kenny told Richard that he was going to kill him and sodomize him.

A Richard was very upset, you know. He said to me, he says says I can't believe what he just told me. He said he's going to kill me, he's going to sodomize me, and he said that he had no idea how cruel he could be. And he was very upset. He was shooken up.

Defendant again did not object.

On cross-examination Bidot admitted that he did not hear what defendant said to Maskevich during the phone conversation, and that what he testified to was merely what Maskevich had told him. After Bidot's testimony was completed, the judge called a sidebar conference, and stated:

Gentlemen, I want you to know, and I want to place it on the record, that the Court accepts that both of you are seasoned and experienced trial lawyers. Criminal trial lawyers in particular. And accordingly, this Court is not going to interfere with the trial and is not going to sua sponte make any objections or rulings, but rather accepts that both parties know exactly what they're doing and/or are conducting this trial in a manner which they think is appropriate.

Defense counsel said that he had agreed to allow the prosecutor to ask some leading questions in certain areas, then the court clarified that its foregoing statement was in relation to the hearsay testimony:

I don't have any problem with that [allowing the prosecutor to ask some leading questions]. We also well there's statements being made about what somebody said to someone else. The gentleman [Maskevich] has passed away. That's all the Court's saying.

The prosecutor responded that "if there was an objection [from defense counsel], I would stop. I assume that Counsel has a purpose and a reason for allowing it in." The court agreed:

As does the Court. That's why I do not interfere. But I don't want, should there be an unfavorable result to the defense and there be appellate review, the reviewing court to think that the Court wasn't aware that some of the questions might be objected to. Rather, the Court believes Counsel should be able to try his own case.

Defense counsel responded: "I believe some of these would come in as state of mind exception [sic]." The court then said: "Some might, some may not. I'm not ruling on them."

During the trial, the court did not instruct the jury that the jury may not consider hearsay evidence as substantive evidence, and defendant did not request such a charge. However, during the final jury charge the court instructed on hearsay and its appropriate uses. The judge made clear that what people who did not testify were alleged to have said could not be considered "for the truth of the matter asserted in those statements," but could be used only to "determine the existing state of mind of the declarant or to determine the declarant's then existing emotional, physical conditions."

The State contends that defense counsel made a strategic decision to allow the statement, perhaps because it supported one of defendant's "main themes," "that defendant and Maskevich had a tumultuous relationship and often spoke to each other harshly," yet continued a loving relationship as well for many years. This fact was developed through the defense witnesses who described how the two men spoke to each other. The State argues that the hearsay was admissible in evidence as to Maskevich's state of mind. See N.J.R.E. 803(c)(3). It also insists the evidence "actually helped defendant achieve an acquittal on the murder and felony murder counts," although it does not explain how, and that "any possible error was harmless."

Our careful review of the record does not permit us to reverse on plain error grounds. It is true, as the State suggests, that the relationship of the two men involved vulgar communications followed by a loving relationship. Defendant appears to have wanted the jury to know that the two men could argue and curse at each other and then, for example, "go to Atlantic City" together. Their relationship, according to the defense, could be confrontational but was not one that would ever result in harm or injury. This was consistent with the defense that he could not tell the jurors "whether or not Delphie Patton acted on his own or whether he acted with Catalina [Cathy] Pagliaroli," but that he did not conspire with defendant.

IV.

Defendant argues that the trial judge erred in charging the jury on aggravated and reckless manslaughter because there was no rational basis in the evidence to find defendant guilty of either crime. He specifically contends that because the State's theory of the homicide was based on accomplice or conspiratorial liability, if the jury found that he was involved with Dee Patton in a plan to rob Maskevich or burglarize his house, even if not to kill him, then he would have been guilty of felony murder, not manslaughter. The defendant's argument has academic merit, see e.g. State v. Cassady, __ N.J. __ (2009), but unfortunately ignores the biggest problem in the presentation of the case to the jury. For reasons we do not understand from the record, notwithstanding a lengthy and thorough charge conference, the trial judge charged on conspiracy and then on the various forms of homicide. He charged on purposeful and knowing murder, aggravated manslaughter, reckless manslaughter and felony murder in that order. He also presented the jury with a verdict sheet listing the crimes in that order, directing the jury to consider the subsequent offense only if found not guilty of the former. The result is that the jury never considered felony murder which clearly inured to defendant's benefit. See, e.g., State v. Martin, 119 N.J. 2 (1990).

The question then becomes whether defendant could be found guilty of aggravated manslaughter based on the facts. In this context, we note defense counsel, perhaps believing defendant would benefit from instructions on lesser included offenses, did not disagree with the prosecutor's statement at the charge conference that "I'm sure there could be an argument as to recklessness by Mr. Pagliaroli, if they believe that he sent [Patton] down there with a gun to do a burglary and/or robbery and things went bad." As the judge responded, "he should have known better. . . . It was reckless, wanton disregard to send him down to do that."

The evidence supported the view that defendant recklessly caused Maskevich's death, under circumstances manifesting extreme indifference to the value of human life, by sending an emotionally unstable person to rob the victim, or burglarize his house, and shot him while reacting to the circumstances and within the scope of the conspiracy. There was a rational basis for the jury to have found that defendant acted recklessly and with extreme indifference to the value of human life, irrespective of whether it believed defendant told Dee to "shoot [Maskevich] again." See Cassady, supra, slip op at 15-16. Thus, the evidence supported the aggravated manslaughter conviction.

For the same reason, we reject defendant's contention that his post-verdict motion for judgment of acquittal should have been granted. State v. Palacio, 111 N.J. 543, 550 (1988); State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super 336, 341 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)); R. 3:18-2. As the judge concluded:

It seems clear that the verdict is sustainable when you look at the evidence . . . [T]he verdict is strongly, totally consistent with the finding that the defendant wasn't the person there who pulled the trigger and maybe initially when it went down it was not his intent to have a murder committed but rather it was reckless, wanton disregard of human life and, frankly, I think the jury thought this out and came to a conclusion based on the evidence.

While the jury could have found that defendant was part of a conspiracy to commit an intentional murder, or that his conduct constituted felony murder, the verdict of aggravated manslaughter cannot be disturbed.

V.

Defendant contends that his sentence must be modified because the court erred in failing to merge the weapons conviction with the armed robbery conviction and because the court abused its discretion in imposing consecutive sentences.

Defendant was sentenced to thirty years in the custody of the Commissioner of Corrections, with eighty-five percent to be served before parole eligibility, under the No Early Release Act for the aggravated manslaughter. See N.J.S.A. 2C:43-7.2. He received a concurrent sentence for the related conspiracy. Defendant received a consecutive twenty-year sentence with eight-five percent to be served before parole eligibility for the armed robbery conviction and a concurrent sentence for the related conspiracy. A concurrent sentence for the possession of a handgun for unlawful purpose was also made concurrent with the conspiracy to commit armed robbery and robbery sentences. The State concedes that the firearm possession for an unlawful purpose must merge with the completed robbery. See State v. Bull, 268 N.J. Super. 504 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994). We therefore need not consider whether it also merged with the homicide conviction. See generally State v. Diaz, 144 N.J 628, 639 (1996).

Although we can detect no conspiracy beyond the completed offenses, we do not address the possible merger of the conspiracy conviction because no issue is raised with respect thereto. See, e.g., State v. Hardison, 99 N.J. 379, 386 (1985); N.J.S.A. 2C:1-8a(2).

Defendant also contends that the court erred in running consecutively the sentences for the aggravated manslaughter and armed robbery convictions. While the jury did not find a purposeful or knowing murder flowing from the single event, we must defer to the judge's exercise of his sentencing authority. See, e.g., State v. Ghertler, 114 N.J. 383, 390-92 (1989); State v. Miller, 108 N.J. 112, 122 (1987); State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed 2d 308 (1986); State v. Roth, 95 N.J. 334, 364-65 (1984).

Given the fact defendant was extended term eligible, and no extended term was imposed, we cannot say that the judge was wrong in imposing the sentence as he did. He found aggravating factors based on the planning, the shooting of a sixty-year-old victim in his bed and in having him shot a second time. The robbery was completed without the actual shooting. The judge thus gave reasons for the imposition of consecutive sentences, and found "two separate and distinct offenses," warranting consecutive terms. On this record we cannot disturb the sentence.

VI.

We find no basis for disturbing the judgment reached after a month-long trial. Much of the trial turned on the credibility of two key state witnesses, which was for the jury to decide. We recognize, however, that our affirmance is based on the rejection of some contentions on "plain error" grounds. Accordingly, we expressly note that the conviction is affirmed without prejudice to a petition for post conviction relief. Our express statement in this regard, however, should not be understood as suggesting a view on the merits.

The judgment is affirmed.

During summation, defense counsel urged that defendant was referring to all of the money that he had paid Maskevich for the cocaine that Maskevich had given to Cathy. Defendant's explanation was that he was angry with Maskevich for supplying Cathy with cocaine because he wanted her to stop using it, so defendant took back the money that he had paid Maskevich for the drugs and flushed Maskevich's supply down the toilet to send him a message. Thus, defendant essentially admitted that he burglarized Maskevich's house and robbed him in July 2003. Of course, defendant was not on trial for that crime as a result of the severance.

Cathy testified Maskevich had asked her to revoke defendant's bail the first time, in the summer of 2003, after defendant sold a limousine that Maskevich had purchased for defendant and Cathy so that they could start a limousine service. Defendant sold it without telling Maskevich.

A locksmith called by the State testified that the key could "not be easily duplicated."

Hardy initially testified that defendant said "Dean," but later admitted defendant could have said "Dee," but that it "[s]ounded like Dean to me." Defendant has a brother named Dean.

Cathy testified that prior to trial she had filed for divorce from defendant, and the divorce was pending at the time of trial.

Defendant also contends "[t]he trial court erred by not relating the law to the facts of the case in its jury instructions," but the defendant appeared to agree with the judge that he should not "summarize the evidence" or state the "contrasting versions."

The State made the same concession at sentencing.

(continued)

(continued)

52

A-6153-05T4

April 8, 2009