STATE OF NEW JERSEY v. JUDITH CASTILLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4597-05T44597-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUDITH CASTILLO,

Defendant-Appellant.

_______________________________

 

Submitted: April 14, 2008 - Decided:

Before Judges Stern and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 00-02-0304.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Judith Castillo appeals from her conviction on retrial for the attempted murder of Dania Jassim and unlawful possession of a weapon and from the sentence of fifteen years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the attempted-murder charge and four years for the unlawful possession of a weapon charge to be served concurrently. We affirm the convictions but remand the sentence for merger of the weapon conviction with the attempted-murder conviction.

The facts developed at the retrial beginning on March 29, 2005, follow: Defendant met John Tambe in January 1997. After dating for several months, they broke off their relationship when defendant began attending college. In December 1997 Tambe began dating Nesrine "Sue" Jassim. Sue and Tambe went through a series of breakups and reconciliations over the next two years. However, in July 1998 Tambe resumed his relationship with defendant. This relationship continued on an intermittent basis, with Sue and defendant vying for Tambe's affection until July 13, 1999, when defendant informed Tambe that she was pregnant with his child. Despite the pregnancy, in late October or early November of 1999 Sue and Tambe again reconciled. Sue resumed the relationship despite knowing that defendant claimed to be pregnant with Tambe's child because Tambe told Sue that he did not believe defendant was pregnant. Sue did not inform her sixteen-year-old sister, Dania Jassim, or her mother, Rajaa Malas, that she had resumed her relationship with Tambe.

On November 7, 1999, Sue went to the parking lot of a Quik Chek in Garfield that was located down the street from Tambe's home. Sue claims that she and Tambe had agreed to meet in this parking lot. Sue noticed that defendant was with Tambe. As they approached the parking lot, Sue believed they were arguing and got out of her car to listen to their argument. Sue heard them arguing about defendant's pregnancy and Sue interrupted to call defendant a liar. Sue and defendant then engaged in shouting insults at each other. At one point during the argument, Sue saw defendant hit Tambe and Sue alerted a nearby police officer.

On the evening of November 9, 1999, Sue left her home to pick up Tambe from work without telling her mother or sister that she was leaving. Around 9:00 p.m. that evening Dania was at home working on a school project when a "young-looking girl" whom she did not recognize rang the doorbell. The person at the door claimed to be a friend of Sue and asked Dania if she could come in to wait for her. Dania said no but, after consulting with her mother, she let her come in to the family room and then she paged Sue to tell her about her visitor. After talking for a while, defendant asked Dania for a glass of water and Dania offered her a piece of apple pie. While they were in the kitchen, defendant asked Dania if her father was home and she told defendant that her parents were divorced. Defendant asked Dania if she had a boyfriend, which Dania denied. Then Dania asked defendant if she had a boyfriend and defendant replied, "Well, that's why I'm here." Defendant looked as though she was going to cry. The entire time defendant was in the house she wore her coat and only took off her gloves to eat the pie. After watching television defendant offered to help Dania with her school project. They worked on the project in the breakfast room for about five minutes until defendant asked for more water and went to the kitchen to get it. Dania continued working on her project but soon "felt something touch her neck." Dania turned around to see defendant holding a knife with blood on it. Dania started screaming and defendant covered her mouth with defendant's hand until Dania bit it. A violent struggle then ensued with defendant repeatedly cutting and stabbing Dania.

Rajaa was sleeping upstairs when the struggle began but she woke up when she heard "Dania screaming out of her mind." Rajaa went downstairs to find defendant "trying to stab Dania . . . in her belly." Rajaa then joined the struggle in an attempt to free Dania. Rajaa also tried to call "911" but the call did not go through. During the struggle Dania grabbed the knife to keep it away from her stomach and at one point defendant dropped it. Dania recovered the knife and held it behind her back while defendant dragged her by the hair across the kitchen. Dania and Rajaa got defendant on the ground by the pantry doorway. Rajaa was sitting on defendant and told Dania to stab her but she could not, so Rajaa told Dania to call the police. Because the kitchen phone was pulled off the wall, Dania ran to the living room and called 911. Dania still had the knife. Meanwhile, defendant got out from under Rajaa and grabbed her by her hair and pulled her into the dining room. Defendant then bit Rajaa above her eye and ran out of the house. Both victims identified defendant as the perpetrator.

Officer Salvatore LaFerlita of the Paramus Police Department arrived at the scene at 9:50 p.m. in response to the 911 call. By this time, three other officers had already arrived. LaFerlita noted that the woman who opened the door, Rajaa, was on her hands and knees and looked "as if she was in some kind of struggle" and "had a bruise above her right eye and was bleeding from her left wrist." The officers then followed a moaning noise to discover Dania "lying face down on the sofa . . . with a large amount of blood on her back."

Dania and Rajaa were taken to Hackensack University Medical Center and Dania was examined by Dr. John Locurto, Jr., and was assigned the "highest priority trauma code" meaning that "there is a chance that the person may die." Locurto testified that Dania had "multiple stab wounds, and in one side of her chest, there was a particular one that . . . looked particularly bad." Locurto determined that these wounds were "life-threatening." X-rays revealed that "one of her lungs was collapsed," and if she did not receive medical treatment "she would have died."

Detective Christopher Brock spoke with Dania at the hospital and Dania described her assailant as "a Hispanic female, approximately 20 years of age, approximately 5 foot, 4 inches tall, [] a little heavy, and with a possible name of Judy." Examination of records revealed that the assailant might have been defendant and the police went to the home of Lourdes Tavares, defendant's sister. Defendant was not home but Tavares admitted that defendant had phoned her and asked to be picked up at a local shopping center. The police accompanied Tavares and arrested defendant.

Appellant was charged with first-degree attempted murder of Rajaa Malas and Dania Jassim, N.J.S.A. 2C:5-1, 2C:11-3(a)(1) (counts one and two); second-degree aggravated assault of Rajaa Malas and Dania Jassim, N.J.S.A. 2C:12-1(b)(1) (counts three and four); third-degree aggravated assault of Rajaa Malas and Dania Jassim, N.J.S.A. 2C:12-1(b)(7) (counts five and six); third-degree aggravated assault of Rajaa Malas and Dania Jassim, N.J.S.A. 2C:12-1(b)(2) (counts seven and eight); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count nine).

The first jury found defendant guilty on all counts except count one, the attempted murder of Rajaa. On count two the judge sentenced defendant to thirteen years in prison with an eighty-five percent NERA parole ineligibility period plus five years of parole supervision. On count three the judge sentenced defendant to five years to be served consecutively to count two. The judge merged counts four, six and eight with count two and counts five and seven with count three. On count nine the judge sentenced defendant to five years to be served concurrently to the sentences imposed on counts two and three. The total aggregate sentence was eighteen years with NERA applying to the first thirteen years of the sentence.

Defendant appealed her conviction alleging several evidentiary violations during the first trial. As a result of trial error in admitting evidence of prior bad acts without adequate limiting instructions, we reversed the judgment of conviction and remanded the matter for a new trial.

On October 28, 2004, the judge conducted a hearing to determine the proper scope of prior bad-acts evidence and on November 4, 2004, the judge ordered that "the State is permitted to introduce evidence . . . about the November 7, 1999 incident . . . to explain motive[.]" The judge further ordered that a limiting instruction "clearly stat[ing] that the jury can only consider th[e] evidence for the limited purpose of establishing motive" would be given and "none of the State's witnesses will be permitted to testify about the other incidents of domestic violence . . . during the State's case-in-chief."

The retrial began on March 29, 2005, and the jury returned its verdict on April 11, 2005. The jury found defendant guilty on all counts relating to Dania Jassim (counts two, four, six and eight) and guilty on count nine, but not guilty on the counts relating to Rajaa Malas (counts three, five and seven). On count two the judge sentenced defendant to fifteen years subject to NERA and on count nine sentenced defendant to four years concurrent to the sentence imposed on count two. The judge merged counts four, six and eight with count two. The total aggregate sentence was fifteen years subject to the NERA eighty-five percent parole disqualifier. Defendant was also ordered to pay $200 to the Victims of Crime Compensation Board, $150 to the Safe Neighborhoods Services Fund, $30 to the Law Enforcement Officers Training Fund, and a $1.00 probation fee. This appeal followed.

Defendant raises the following issues on appeal:

POINT I - THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT INADMISSIBLE TESTIMONY UNDER THE GUISE OF N.J.R.E. 404(b).

POINT II - THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL WITH RESPECT TO COUNT II CHARGING ATTEMPTED MURDER.

POINT III - THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IX CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT II CHARGING ATTEMPTED MURDER AND/OR COUNT III CHARGING AGGRAVATED ASSAULT. (NOT RAISED BELOW)

POINT IV - THE SENTENCE IMPOSED VIOLATED PRINCIPLES OF DOUBLE JEOPARDY SINCE IT EXCEEDED THE AGGREGATE SENTENCE IMPOSED FOLLOWING THE FIRST TRIAL.

POINT V - THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

A judge's discretionary rulings on the admissibility of evidence may not be disturbed absent a mistaken exercise of discretion so long as the rulings are consistent with applicable law. State v. Fortin, 189 N.J. 579, 597 (2007); State v. Cook, 179 N.J. 533, 568-69 (2004); Tarr v. Bob Ciasulli's Mack Auto Mall, 390 N.J. Super. 557, 563 (App. Div. 2007), aff'd, 194 N.J. 212 (2008). Error in the admission of evidence is not harmful if the defendant's fundamental rights are not impaired and the evidence against the defendant is otherwise strong. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.), certif. denied, 170 N.J. 209 (2001).

[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 motive . . . when such matters are relevant to a material issue in dispute.

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

To be admissible under N.J.R.E. 404(b), evidence of prior bad acts must meet four tests:

(1) The evidence of the other crime must be admissible as relevant to a material issue;

(2) [The evidence] must be similar in kind and reasonably close in time to the offense charged;

(3) The evidence of the other crime must be clear and convincing; and

(4) The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992) (citations omitted); see also State v. Barden, ___ N.J. ___ (2008) (slip op. at 11-12); State v. Kemp, ___ N.J. ___ (2008) (slip op. at 13-14).]

If the evidence satisfies the Cofield test, then, like other discretionary evidential rulings, the admission of the evidence under N.J.R.E. 404(b) is reviewed on appeal under a mistaken-exercise-of-discretion standard. State v. Marrero, 148 N.J. 469, 483 (1997).

Defendant argued that the probative value of the events of November 7, 1999, did not outweigh their prejudicial impact, a discretionary determination. We disagree. Although it is true that Sue's retrial testimony did not match the October 28, 2004, proffer by the prosecutor, on which the judge had relied in admitting the evidence, the divergence in the testimony actually was less prejudicial to defendant than the proffered evidence. The proffered testimony was that defendant "ambushed" Sue and Tambe, while the retrial testimony was merely that Tambe and defendant were together in the Quik Chek parking lot and appeared to be arguing. While Sue intervened and called the police because she claimed that defendant hit Tambe, that act was directed toward Tambe, not Sue and her family, unlike the evidence admitted at the first trial. The only evidence establishing a motive for the attack on November 9, 1999, was the love triangle and Sue's phone call to the police two days before. Because the evidence of defendant's guilt was overwhelming, any error in admitting the rather bland evidence of the events on November 7, 1999, could not have deprived defendant of any fundamental rights. Soto, supra, 340 N.J. Super. at 65. We find no mistaken exercise of discretion here.

Defendant next contends that the judge erred in denying her motion for acquittal on the attempted murder charge. The Supreme Court in State v. Rhett explained the requirements for an actor to be guilty of attempted murder:

Although an actor may be guilty of murder if he or she intended to kill or was practically certain that his or her actions would cause or would be likely to cause death, the actor is guilty of attempted murder only if he or she actually intended the result, namely, death, to occur. Thus, the Code requires that to be guilty of attempted murder, a defendant must have purposely intended to cause the particular result that is the necessary element of the underlying offense death."

[ 127 N.J. 3, 7 (1992).]

In determining whether to grant a judgment of acquittal pursuant to Rule 3:18-1, the court must decide "'whether viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.'" State v. Kittrell, 145 N.J. 112, 130 (1996) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).

Defendant argues that "a fair review of the credible evidence elicited by the State failed to present a prima facie case establishing the requisite elements of attempted murder." Specifically, she argues that "there was absolutely no reason for [her] to intend to kill Dania Jassim, whom she did not even know." She also argues that the one serious wound was life threatening only because, if left untreated, Dania would have died. She contends that the wound was only "significant" because it caused a lung to collapse and that "none of the wounds had actually involved vital organs or had threatened the immediate loss of life[.]"

Here, the evidence presented by the State included testimony from Dania and Rajaa detailing the attack by defendant. Included in this testimony were statements by Rajaa describing defendant "trying to stab Dania . . . in her belly." Dania described defendant stabbing her in the neck and the violent struggle that followed. There was testimony from Dr. Locurto explaining that Dania was assigned the "highest priority trauma code" meaning that "there is a chance that the person may die" and that Dania had a tension pneumothorax from a stab wound in her back that was pushing her heart to the other side and that she would have died had she not been brought to the hospital. Dania had two stab wounds in her back and one in her left wrist, cuts on both hands and a cut to the back of her neck. She lost at least a quarter of her blood volume. Officer LaFerlita described Dania's condition when he arrived at the home. She was moaning, lying face down on the sofa with a large amount of blood on her back and was in very bad shape with extremely labored breathing. Additionally, the knife that inflicted the wounds on Dania did not come from her home and the jury could reasonably infer that defendant brought it with her for the purpose of inflicting harm.

When "giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom," Kittrell, supra, 145 N.J. at 130, it cannot be said that no reasonable jury could find the appellant guilty of the attempted murder of Dania. Indeed, the intent to kill is palpably obvious from the multiple stabs to Dania's back, resulting in the life-threatening collapsed lung. The judge did not err in denying defendant's motion for acquittal.

Defendant argues that the judge erred when he failed to merge the weapon-possession conviction with the attempted-murder conviction, or an aggravated-assault conviction merged into the attempted murder. The State appropriately agrees.

As required by State v. Petties, 139 N.J. 310, 320 (1995), the jury instruction given on retrial stated that "[t]he State's contention therefore is that the defendant's unlawful purpose in possessing the weapon was to commit the crimes . . . of homicide and aggravated assault, either serious or significant bodily injury." As such, the only unlawful purpose for the possession of the weapon was its use in the attempted murder of Dania and therefore count nine should have been merged with count two, and we thus remand the sentence for such merger.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are that the judge (1) violated the principles of double jeopardy by imposing a fifteen-year sentence on the attempted-murder conviction which carries a NERA parole ineligibility period of about twelve years and nine months, whereas the initial sentence carried only an eleven-year eighteen-day NERA ineligibility period and (2) imposed a manifestly excessive sentence. We add only the following comments.

Defendant's sentence did not violate the double-jeopardy clause. "[C]omponent parts of an aggregate sentence may be restructured upon resentencing without violating a defendant's due process or double jeopardy rights, so long as the defendant's aggregate sentence is not increased." State v. Espino, 264 N.J. Super. 62, 72 (App. Div. 1993) (emphasis added). Therefore, resentencing does "not violate [defendant's] double jeopardy rights, since the defendant's only expectation [is] that his original aggregate sentence [will] not be increased." State v. Young, 379 N.J. Super. 498, 508 (App. Div. 2005).

Double jeopardy only applies to post-sentencing actions when the defendant has begun the sentence and has a legitimate expectation of finality. State v. Haliski, 140 N.J. 1, 21 (1995). Under these circumstances, any subsequent resentencing cannot impose a greater punishment. State v. Rodriguez, 97 N.J. 263, 270 (1984). However,

This Court has held that a defendant who appeals his substantive conviction along with the corresponding sentence has no legitimate expectation of finality in either the underlying conviction or the corres-ponding sentence. Rodriguez, supra, 97 N.J. at 263. The holding in Rodriguez signify-cantly narrowed the scope of State v. Ryan, 86 N.J. 1, 8-9, cert. denied, 454 U.S. 880, 102 S. Ct. 363, 70 L. Ed. 2d 190 (1981), which held that principles of double jeopardy foreclose the imposition of an increased prison sentence after a defendant has commenced serving a portion of that sentence. In Rodriguez, the Court instructed that "Ryan can be understood to hold that the commencement of sentence coupled with the defendant's expectation of finality in his original underlying conviction and sentence combined to raise a constitutional bar against an increase in that sentence." Rodriguez, supra, 97 N.J. at 270 (citing Ryan, supra, 86 N.J. at 9-10). Hence, after Rodriguez, the critical inquiry in assessing whether principles of due process and double jeopardy bar imposition of a sentence greater than one initially imposed is whether the defendant maintains a "legitimate expectation of finality" with respect to the sentence. See United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980) (holding that increase in original sentence was constitutional because defendant had no expectation of finality in sentence where statute specifically authorized sentence to be increased); North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969) (holding that increase in sentence following remand and retrial constitutional because defendant had no expectation of finality in sentence when he appealed underlying conviction as well as sentence); [State v.]Sanders, [] 107 N.J. [609,] 619 [(1987)] (noting that under DiFrancesco, supra, 449 U.S. at 117, 101 S. Ct. at 426, 66 L. Ed. 2d at 328, "the touchstone of the double jeopardy analysis lies in the expectation of finality that a defendant vests in his sentence").

[Halinski, supra, 140 N.J. at 21-22.]

On review, "an appellate court may not substitute its judgment for that of the trial court" and is "bound to affirm a sentence, even if [the appellate court] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. Natale, 184 N.J. 458, 489 (2005). Further, the appellate court must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) only "modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). Appellant acknowledges that the presumptive term was imposed in this case so a "remand is not warranted pursuant to Natale" but argues that "a proper weighing of the aggravating and mitigating factors" does not support the sentence imposed. We find no abuse of discretion in the imposition of a fifteen-year term for this attempted murder and affirm the sentence imposed on that conviction and find no error in the findings of aggravating and mitigating factors.

 
The convictions and the sentence on the attempted-murder conviction are affirmed and the sentence is remanded for merger of the unlawful-possession-of-a-weapon conviction with the attempted-murder conviction.

(continued)

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A-4597-05T4

July 11, 2008