STATE OF NEW JERSEY v. ABBIJIAL SLOAN

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3447-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ABBIJIAL SLOAN,

Defendant-Appellant.

________________________________________________________

December 18, 2012

Submitted December 11, 2012 - Decided

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-05-1453.

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

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was charged with and convicted by a jury of the first-degree murder of his wife at their Newark apartment on August 23, 2007, N.J.S.A. 2C:11-3(a), as well as fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). Defendant was also convicted of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); defendant and the victim's three-year old child was present in the residence and found by police in the apartment near his dead mother and the murder weapon. Following the merger of the third-degree weapon conviction into the murder conviction, the judge sentenced defendant to a life term, with an eighty-five percent parole ineligibility period,1 on the murder conviction; the judge also imposed a concurrent eighteen-month prison term on the remaining weapon conviction, and a consecutive ten-year prison term on the child endangerment conviction.

Defendant appeals, arguing:

I. DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTIONS WAS VIOLATED BY THE ADMISSION OF DNA EVIDENCE WITHOUT A PROPER FOUNDATION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) art. i. par. 1) (Not Raised Below).

II. SINCE THE STATE ADVANCED CONCEPTUALLY DIFFERENT THEORIES OF CULPABILITY FOR ENDAN-GERING THE WELFARE OF A CHILD, BASED ON DIFFERENT ACTS AND DIFFERENT EVIDENCE, THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURORS THAT TO CONVICT THEY HAD TO UNANIMOUSLY AGREE AS TO WHICH SPECIFIC CRIMINAL ACTS WERE COMMITTED. THE ABSENCE OF A UNANIMITY INSTRUCTION VIOLATED DEFEN-DANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS (U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PAR. 1) (Not Raised Below).

III. DEFENDANT IS ENTITLED TO RESENTENCING BECAUSE THE SENTENCING COURT FAILED TO FIND SUBSTANTIAL MITIGATING FACTORS AND, BECAUSE THE COURT ABUSED ITS DISCRETION AND ALLOWED NUMEROUS RELATIVES OF THE VICTIM TO THREATEN AND VERBALLY ABUSE DEFENDANT IN OPEN COURT AT SENTENCING, THEREBY DEPRIVING DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS (U.S. Const. Amend. XIV; N.J. Const. Art. 1, Par.1).

We find insufficient merit in these arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), adding only the following brief comments concerning Points I and II.

The lack of merit in Point I is demonstrated by the fact that defendant did not dispute that he stabbed his wife. As police approached the murder scene, defendant, with blood on his shirt, said: "It's me you want. I stabbed her because she's been cheating on me." After being handcuffed and escorted to a police vehicle, defendant again volunteered: "I stabbed her. She deserved it." At trial, defendant acknowledged, in response to his attorney's questioning, that he stabbed his wife. And, in his summation, defense counsel stated that the case was not "a who done it" because "[h]e" -- referring to defendant -- "done it." Instead, defense counsel argued that the stabbing was a product of passion or provocation.

Despite his concessions, defendant argues in this appeal that the State did not lay a sufficient foundation for admission of DNA evidence taken from a buccal swab of defendant, from the victim's blood during the autopsy, and from swabs of blood taken from: the tip of the butcher knife; the knife blade near the handle; the pocket of defendant's pants; the outside of defendant's pants; and defendant's jacket. This evidence was admitted without objection. Notwithstanding his silence on this point at trial, defendant now argues that the admission of this evidence was plainly erroneous because the State did not establish an uninterrupted chain of custody, citing State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1960); see also State v. Morton, 155 N.J. 383, 446 (1998); State v. Brunson, 132 N.J. 377, 393 (1993).

We reject defendant's contention. By failing to object at trial, defendant deprived the State of the opportunity to fill any alleged gaps in the chain of custody. Moreover, the admission of this evidence was not "clearly capable of producing an unjust result," R. 2:10-2; State v. Castagna, 187 N.J. 293, 312 (2006), because defendant freely admitted he stabbed his wife.

In Point II, defendant argues that the State's evidence suggested two potential grounds for a jury's finding of child endangerment, namely: the murder was committed in the child's presence or defendant's leaving the butcher knife in the child's presence after the murder. Defendant claims that some members of the jury may have found the former and others the latter, and that the jury may not have been, in that way, unanimous as to the conduct that constituted child endangerment. We find no merit in this argument. The State's theory on this count, as reflected in the indictment and as played out at trial, was that defendant killed his wife in the child's presence. Moreover, defendant failed to express this concern at trial or request a specific jury instruction. We, thus, conclude that the judge's failure to sua sponte provide additional unanimity instructions to eliminate the theoretical possibility urged for the first time in this appeal was not clearly capable of producing an unjust result. See State v. Parker, 124 N.J. 628, 638-40 (1991).

Affirmed.

1Because a sentence of life imprisonment is deemed to be seventy-five years, N.J.S.A. 2C:43-7.2(b), the eighty-five percent period of parole ineligibility was calculated to be sixty-three years, nine months and three days.