STATE OF NEW JERSEY v. JOSE LUIS RIVERA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0823-03T40823-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE LUIS RIVERA,

Defendant-Appellant.

_______________________________________________________________

 

Submitted March 20, 2007 - Decided August 23, 2007

Before Judges Weissbard, Graves and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Ind. No. 99-02-0457.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Susan Brody, Assistant Deputy

Public Defender, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Annmarie Cozzi,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

In a two-count indictment, defendant Jose Luis Rivera was charged with the purposeful or knowing murder of his wife, Amalia Rojas, N.J.S.A. 2C:11-3(a)(1), (2) (count one); and third-degree hindering apprehension by attempting to conceal the victim's body, N.J.S.A. 2C:29-3(a)(3) (count two). On November 14, 2002, a jury found defendant guilty as charged. Defendant was sentenced to serve a term of life imprisonment with thirty years of parole ineligibility on count one. He received a consecutive five-year term of imprisonment on count two. Appropriate penalties and assessments were also imposed.

On appeal, defendant presents the following arguments:

POINT I

THE COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTER.

POINT II

THE PROSECUTOR'S MISSTATEMENT IN HIS SUMMATION OF THE LAW ON PASSION/PROVOCATION DEPRIVED DEFENDANT OF A FAIR CONSIDERATION OF THAT OPTION BY THE JURY, REQUIRING REVERSAL OF HIS MURDER CONVICTION. (Not Raised Below.)

POINT III

THE AGGREGATE LIFE-PLUS-FIVE YEAR TERM IMPOSED ON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE RELEVANT CIRCUMSTANCES.

After reviewing the record and the applicable law, we conclude defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nonetheless, after noting the key facts, we will comment briefly on Points I and II.

The victim, Amalia Rojas, and defendant were married in Mexico in 1983. According to the adult presentence report, three children were born of the marriage. The oldest child resides in Astoria Queens, and the two youngest reside with an aunt in Mexico. In the mid-nineties, Amalia and the children emigrated to the United States, and defendant joined the family in the late nineties.

During September 1998, the timeframe of the murder, defendant, Amalia, and the two youngest children resided in one room of a basement apartment in Queens that they shared with Amalia's seventeen-year-old nephew, Armando Rojas, and a man named David Alvarez. Amalia had married Alvarez after her arrival in the United States.

On Sunday, September 13, 1998, Amalia and defendant left the apartment together, but when defendant returned to the apartment at about 6:00 p.m. that evening, he was alone. He told Armando Rojas that he and Amalia had gone to 42nd Street in New York City, and that "she had gone into the bathroom and hadn't come out."

On Monday, September 14, 1998, at about 7:00 a.m., Pedro Soto arrived for work at the Gilmont Industries distribution warehouse located at 738 Schulyer Avenue in Lyndhurst, New Jersey. After lunch, as part of his duties, Soto drove a forklift to the back of the building in order to retrieve a container. While in this area, Soto noticed "the legs" sticking out from between the building and a 36 x 36 x 24 inch shipping container. When Soto moved a blue plastic container lid that was partially covering the body, he observed an unknown dead woman. Immediately thereafter, Soto notified the police.

Sergeant Brian Callanan of the Bergen County Prosecutor's Office (BCPO) was one of the officers who responded to the scene. Upon his arrival, Callanan noted a ligature around the victim's neck, abrasions on her left arm, and a laceration on her face. These abrasions suggested to him that the body had been dragged.

Dr. Sunandan Singh, the Bergen County Medical Examiner, also came to the scene. Dr. Singh pronounced the woman dead at 2:45 p.m., and based on his evaluation of the body at the scene, he opined that the woman had died between 2:00 p.m. and midnight the previous day.

A search of the area around the body did not result in any identification for the victim but did reveal several yellow grocery-type plastic bags. It was later learned that these bags originated from a grocery store in Queens.

Further investigation revealed that a man named Jorge Onofre had brought a group of men from Queens to the Gilmont Warehouse to assist with the task of cleaning out the warehouse. This crew had worked at the warehouse about six weeks earlier. The police obtained a list of the workers that Onofre had brought to the site. Defendant and Armando, the victim's nephew, were both on the list of individuals who had previously worked at the warehouse.

On the following evening, Tuesday, September 15, 1998, officers from the BCPO went to Queens to question defendant and some of the other individuals who had worked at the Lyndhurst warehouse. The police were especially interested in defendant because they had learned, through another worker, that defendant's wife had been missing since Sunday, September 13, 1998.

Shortly before midnight on September 15, Detective Joseph Macellaro of the BCPO and Detective Peter Ortega of the New York city Police Department went to defendant's residence, Apartment 9B at 2513 31st Avenue, Astoria, Queens. When defendant opened the door, Detective Ortega, acting as interpreter, informed defendant they wanted to speak with him regarding his wife's disappearance and asked to see a photograph of her. Defendant produced his wife's passport and agreed to accompany the officers to the precinct. The officers transported defendant and Armando to the local precinct.

At the precinct, defendant and Armando were interviewed separately, and after he was advised of his Miranda warnings, defendant agreed to speak with the police. Initially, defendant told police his wife and David Alvarez had argued on Sunday, and she had "stormed out" of the apartment and had not returned. Afterwards, he had searched for her by bicycle, but had been unable to locate her. Defendant explained he did not report his wife missing because he assumed she would return on her own.

Detective Macellaro told defendant he did not believe him. In response, defendant stated his wife had been out drinking all night, before returning home early in the morning. He also indicated he had an argument with her that almost turned physical, but her nephew Armando interceded. Defendant told Detective Macellaro that his wife had also argued with David Alvarez and, thereafter, she "stormed out" of the apartment and had not returned.

Macellaro told defendant they had discovered a woman's body behind the warehouse in Lyndhurst where defendant had worked, and they believed it to be his wife. According to Macellaro, defendant did not react with any obvious emotion to this news.

After again telling defendant he was having a hard time believing his story, Macellaro speculated aloud that defendant and his wife had argued because she was planning on leaving him. Defendant denied having anything to do with his wife's disappearance, but he admitted his wife was planning to leave him, and he was upset about that because he did not want her to leave him and the children.

Just before 3:00 a.m., Detective Luis Alvarez of the BCPO entered the interview room and asked defendant for consent to search his apartment. Defendant consented to the search, and he read and signed a Spanish version of a consent-to-search form at approximately 2:57 a.m.

Thereafter, Detective Macellaro continued to tell defendant he did not believe him, the police were going to find out the truth, and it would be in his best interest to tell the truth. At this point, defendant started crying and he blurted out (in Spanish), "I didn't want it to happen, it had to happen." Detective Macellaro then asked defendant if he had killed his wife, and he answered "yes."

After allowing defendant a few moments to compose himself, Macellero asked defendant to describe the events of Sunday, September 13, 1998. Defendant began by stating that his wife had been out drinking all night the previous evening, and they argued when she returned. During the course of their argument, Amalia accused defendant of having a girlfriend in New Jersey. Defendant denied this accusation, and offered to take Amalia to the site where he had worked in New Jersey. At about 11:00 a.m., they took a train to the Port Authority Bus Terminal where they boarded a bus to New Jersey. They arrived at the warehouse in Lyndhurst at approximately 12:30 or 1:00 p.m. The warehouse was closed, and the two argued as they proceeded towards the rear of the building. While they were arguing, defendant slowly grabbed his wife around the neck and began to choke her with his hands until she fell to the ground. Once she fell to the ground, he picked up an elastic strap that was lying on the ground and wrapped it around her neck, and he applied pressure. Defendant stated he held the strap for approximately five to ten minutes until his wife stopped moving or breathing. Defendant then tied the strap in a knot around her head and, when he realized his wife was dead, he covered the upper portion of her body with a blue plastic container top.

Defendant walked back to the bus stop, and he went into a nearby liquor store to purchase a return ticket to New York and a beer. While waiting for the bus, defendant returned to the liquor store, inquired about the bus, and purchased a second beer, which he drank before returning home. Defendant told the police that later in the evening, he and Armando went to visit a friend named Felipe, and outside of Armando's presence, defendant told Felipe he had killed his wife. The next day, he twice telephoned a former coworker, on a pretext, in an effort to obtain information regarding the police investigation.

While waiting for a stenographer to be available, the police reviewed defendant's statement with him a second time. Between 5:48 a.m. and 6:45 a.m. on September 16, 1998, with the aid of a Spanish interpreter, defendant gave a twenty-four page stenographic statement. In his statement, defendant described how he killed his wife at the deserted warehouse in Lyndhurst:

Question: Did a fight start between the two of you?

Answer: Yes, then we started to argue because she told me that if I arrived home drunk she was going to kill me.

Question: Did the fight turn physical?

Answer: Yes, She told me that, then I told her why are you telling me lies.

Question: Did you touch your wife?

Answer: I slowly grabbed her from the front.

Question: When you say you grabbed her what part of her body did you grab?

Answer: The neck.

Question: Did you grab her throat with two hands or one hand?

Answer: First I believe it was one, then with two.

Question: So you were choking her with two hands. Is that correct?

Answer: When she was on the floor.

Question: So she fell on the floor?

Answer: Yes, she fell on the floor.

Question: Then what happened?

Answer: I grabbed her there with that elastic. I grabbed that elastic, I gave it a turn, I held it.

Question: When you say elastic what are you talking about something like a rope?

Answer: It was something like this but it stretched.

Question: Let the record reflect he is pointing to the strap which is on the stenographer's case. How long was this piece of strap?

Answer: I just know that I stretched it and it stretched long.

Question: Where did you get this from?

Answer: It was lying on the floor.

Question: And you said -- did you wrap it around your wife's neck?

Answer: Yes.

Question: How many times did you wrap it around her neck?

Answer: I believe it was two times.

Question: Then what did you do after you had it wrapped around her neck? What did you do? Did you put pressure on it, did you squeeze?

Answer: I grabbed her neck and I used that elastic.

Question: How long did you hold the elastic around her neck for?

Answer: Like five, 10 minutes. It seemed like five minutes.

Question: What happened next? What happened to her?

Answer: She stayed there.

Question: Was she trying to pull the elastic off while you were holding it on her neck?

Answer: Yes, she was trying to but she couldn't because she grabbed me by my right arm and made these marks.

Question: Let the record reflect he's pointing to a contusion on his right arm that he indicated was done by his wife. And just to clarify how did you get that bruise on your right arm?

Answer: She grabbed me like this and I pulled away.

Question: So she grabbed your arm. Is that correct?

Answer: She was trying to grab me, but I didn't allow her to.

Question: Was she on the ground when you were holding this against her?

Answer: Yes, she was on the floor.

Question: Was she close to the building?

Answer: In the corner.

Question: Did there come a time when she stopped moving or stopped breathing?

Answer: I believe she stopped breathing because she fell back.

Question: . . . Just so I understand, your wife is on the ground and you have this elastic around her neck. Is that correct?

Answer: Yes.

. . . .

Question: So there comes a point in time you tied a knot in the elastic?

Answer: I said when she was face down.

Question: And you turned her on her back?

Answer: I tied it. I turned her over face up and I lifted her arms.

Question: When you turned her on her back was she breathing?

Answer: I don't think so because she wasn't breathing.

Question: After you did this what did you do? Did you put anything over her to cover her?

Answer: Oh, yes. I put plastic there. It was covering sand that was on the ground.

Defendant was arrested after he gave his stenographic confession. Following his arrest, defendant was examined for injuries. The only injury observed was the contusion on his arm, which defendant said was caused by his wife grabbing him while he was strangling her.

While defendant was giving his statement to Macellaro, other police officers conducted a consent search of defendant's apartment. As a result of the search, the police seized a backpack from the room shared by defendant and his family. The contents of the backpack included several tools and a workman's black back-support belt. Because the workman's belt bore visual similarities to the elastic used to strangle defendant's wife, and the ligature appeared to be the missing strap from the shoulder harness of the back-support belt, both items were submitted to the State Police laboratory for microscopic analysis. At trial, the State produced testimony that the fiber content and weave pattern of the two items exhibited the same characteristics, and that the clip fastener on the back-support belt fit the clip on the ligature.

On Thursday, September 17, 1998, following an extradition hearing, defendant was transported from Queens to New Jersey by police officers. During this ride, defendant, for the first time, mentioned that he and his wife had had a physical altercation. Also during this ride, defendant agreed to show the officers the route he and Amalia took to and from the warehouse.

At trial, the State produced the testimony of Pedro Soto, who had worked at the warehouse in Lyndhurst with defendant. He testified that,when defendant worked at the warehouse, he wore a black back-support belt around his waist made from "stretchable cloth material." In addition, when he was asked if he recognized the black back-support belt that had been seized by the police, he testified it was "very similar to the one [defendant] used to wear." This information was confirmed by Armando, who also testified he saw defendant wearing a black back-support belt at work.

Michael Manzo, a Lyndhurst resident, was another State's witness. He testified that on the Sunday in question, he had been standing outside of his house talking when a man and woman, who appeared to be Mexican, walked by. According to Manzo, the man was "at least eight steps" ahead of the woman, and the man "looked like he was really angry." On September 23, 1998, Manzo was shown a photograph of defendant, and he identified him as the man he had seen walk by his house. Manzo testified he contacted the police when he learned that the body of a Mexican woman had been found "down the street."

Dr. Singh, the Bergen County Medical Examiner, also testified at trial. Dr. Singh stated when he initially examined the victim's body at the warehouse in Lyndhurst, he saw some injuries on her face and "some abrasions," but "the most remarkable thing" he observed "was a ligature around her neck," which he described as follows:

[P]art of the ligature had passed through the mouth, and it was wove very tightly around her neck as well as the mouth. And also after further examination it appeared that there were -- the whole ligature itself was tied behind the back. And in doing so, apparently her hair had been caught in that knot, and it was implicated in that.

According to Dr. Singh, a black elastic belt had been used to cut off the victim's oxygen supply. Dr. Singh testified that because of the "elastic nature" of the ligature, it had been "tightly wound, both around the neck as well as the mouth. It was extremely tight." Dr. Singh determined the cause of death was "asphyxia due to ligature of [the] neck."

In response to a hypothetical question, Dr. Singh opined if an asphyxiation took place over a five to ten minute period, the victim would not be acting passively, but rather, struggling against the asphyxiating force. Dr. Singh also testified a knot in the rear of a ligature would likely have been tied when the person being strangled was unconscious.

Dr. Singh's examination also revealed blunt force injuries to the victim's head and neck. The majority of these injuries were located on the left side of Amalia's forehead above the ear. According to Dr. Singh, these injuries could have been caused by a hard object hitting Amalia's head or by her head hitting a hard object.

Defendant elected not to testify at trial, and no witnesses were produced on his behalf. During summations, defense counsel did not dispute defendant killed his wife, but he argued the killing was committed in the heat of passion resulting from reasonable provocation.

Something set Jose Luis Rivera off, because he didn't go there planning to kill her. He didn't go there intending to kill her. The intent was to show her where he had worked, where he used to work, that he didn't have a girlfriend there. And something happened. And he's there. And there's really no question about it, that he caused her death. But the real issue is what's the state of mind.

. . . .

The State wants you to believe that it was done purposefully. It was done on purpose, deliberately, or with knowledge that death [would] probably be the result. Or was it done as a result of provocation in the heat of an argument, in the heat of passion, or where somebody loses control. And I know the State's going to say, well, how much can you lose control because he held that strap for three minutes or five minutes and there was a struggle?

But, you know, once you lose control, once you cross that barrier, once you cross the threshold and you can't stop because you lost control. And there's a struggle and we know from Dr. Singh that there was a struggle and Miss Rojas struggled back. But he's also a bigger [person than] she is. She was quite small. And unfortunately, it happened.

In denying defendant's motion for a new trial, the trial court noted there was substantial evidence to support the jury's verdict. "[T]he jury did hear the evidence. It was substantial. They heard the statement of the defendant. Based upon that, they only took a few hours to deliberate this case."

During a charge conference, defense counsel asked the trial court to instruct the jury on aggravated manslaughter and reckless manslaughter:

Yes, he did choke her. Yes, he did put the ligature around her, but there's really nothing in his statement to believe that he knew or understood that he would kill her.

And if he didn't understand that, Judge, then the state of mind is not purposeful and knowing.

Then the jury can conclude that his state of mind was reckless. Because it is reckless to take a ligature and put it around someone's neck. I don't know that there's anything . . . in the statement to say that he intentionally killed her. It seemed to have just happened. I think that that's a fair reading of the statement, Judge.

On the other hand, the State argued there was no rational basis for the requested charges:

And if you look at his statement, there was an argument. He started to strangle her. He found a belt on the floor, or wherever he got it from, picked it up, put it around her neck, wrapped it around twice, and started choking her for five to ten minutes. You can't get more purposeful than those types of things. And that's exactly what he said.

And then he had even more, because when she was unconscious or at least incapacitated, he tied a knot. And the tightness of the knot, I don't think is in question because of the fact we have the photographs to show it. And then left her there and covered the body up.

How do you get reckless conduct from all those purposeful actions, I just can't see it. I think it's clear that although passion of provocation at least is arguable, that there is no rationale basis to charge reckless conduct in this case.

Under the Criminal Code, "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). When a defendant requests a lesser included charge, the request is evaluated against the trial record. If there is a rational basis for the jury to reject the greater charge and a rational basis in the evidence to convict on a lesser charge, the lesser charge must be given. State v. Brent, 137 N.J. 107, 116-17 (1994); State v. Crisantos, 102 N.J. 265, 276 (1986). A trial judge is not required to instruct a jury on a lesser included offense when a verdict on that charge is clearly unwarranted by the evidence. Crisantos, supra, 102 N.J. at 273.

A homicide is aggravated manslaughter when "the actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). A homicide is manslaughter when "[i]t is committed recklessly," N.J.S.A. 2C:11-4(b)(1), that is, when the perpetrator "consciously disregards a substantial and unjustifiable risk [death] will result from his conduct." N.J.S.A. 2C:2-2(b)(3). The Supreme Court has explained the state-of-mind distinctions between murder, aggravated manslaughter, and reckless manslaughter as follows:

To be guilty of [serious bodily injury] murder, the defendant must have knowingly or purposely inflicted serious bodily injury with actual knowledge that the injury created a substantial risk of death and that it was "highly probable" that death would result. In aggravated manslaughter, by contrast, the defendant must have caused death with an "awareness and conscious disregard of the probability of death." If, instead, the defendant disregarded only a "possibility" of death, the result is reckless manslaughter.

[State v. Jenkins, 178 N.J. 347, 363 (2004) (citing State v. Breakiron, 108 N.J. 591, 605 (1987); State v. Pearson, 318 N.J. Super. 123, 136 (App. Div. 1999)).]

In this case, the trial court found "based upon the testimony and what the jury has heard . . . there really is no information, or testimony, or any rational basis to support a reckless or aggravated manslaughter charge." We agree. In our view, the record clearly supports the finding defendant was necessarily aware it was "practically certain" his conduct would cause death or serious bodily injury. N.J.S.A. 2C:2-2(b)(2). Moreover, there was no evidence to support defendant's claim that he was merely reckless in disregarding the possibility or probability that death would occur when he tied a ligature tightly around his wife's neck and mouth; applied pressure for five to ten minutes--until his wife stop struggling; tied a knot to secure the ligature after his wife stopped breathing; and he abandoned his wife's partially concealed body at a deserted location.

Defendant, who was thirty-eight years old when he was sentenced on November 21, 2002, also contends the life sentence with thirty years of parole ineligibility is "manifestly excessive." A similar argument has been considered but rejected by the Supreme Court. "'[B]ecause the crime of murder has no presumptive term, defendant, like every murderer, knows he is risking life in prison.'" State v. Abdullah, 184 N.J. 497, 508 (2005) (quoting State v. Abdullah, 372 N.J. Super. 252, 283 (App. Div.), certif. granted, 192 N.J. 208 (2004), aff'd in part rev'd in part, 184 N.J. 497 (2005)). Thus, we affirm defendant's life sentence with thirty years of parole ineligibility. However, the five-year sentence imposed on the hindering apprehension conviction is remanded because it exceeded the then-applicable presumptive term, and the aggravating factors considered by the judge were not limited to defendant's prior record. Thus, defendant is entitled to be resentenced in accordance with State v. Natale, 184 N.J. 458, 466 (2005). Of course, at the resentencing hearing, the court should set forth its reasons for imposing either a consecutive or concurrent sentence.

We affirm defendant's convictions and the sentence imposed on his murder conviction, but the sentence imposed for hindering apprehension is remanded for resentencing. Also, because the judgment of conviction (JOC) does not accurately reflect the trial court's determination of aggravating and mitigating factors, we remand for entry of a corrected JOC. We do not retain jurisdiction.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-0823-03T4

August 23, 2007