STATE OF NEW JERSEY v. WILFREDO SANCHEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILFREDO SANCHEZ, a/k/a

WILFREDO SAGASTUME,

Defendant-Appellant.

__________________________________

August 19, 2016

Submitted April 4, 2016 Decided

Before Judges Fasciale, Nugent and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-11-1892.

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

RobertLougy, ActingAttorney General, attorney forrespondent (JenniferE. Kmieciak, Deputy AttorneyGeneral, of counsel and on the brief).

PER CURIAM

Defendant Wilfredo Sanchez appeals his judgment of conviction for murder, desecrating and disturbing human remains, four weapons offenses, and two hindering apprehension offenses. He presents the following arguments

POINT I

THE TRIAL COURT'S REFUSAL TO CHARGE ANY LESSER-INCLUDED INSTRUCTIONS TO MURDER, ESPECIALLY IN LIGHT OF THE FACT THAT DEFENDANT DID NOT DELIVER THE FATAL STAB WOUND, MANDATES A NEW TRIAL.

POINT I i

The Trial Court Erroneously Denied Counsel's Request For a Jury Instruction on Passion/ [P]rovocation Manslaughter.

POINT I ii

The Trial Court Erroneously Denied Counsel's Request for the Two Forms of Reckless Manslaughter.

POINT I iii

The Absence of an Instruction on Aggravated Assault, Which was Clearly Indicated by the Evidence, Was Improper.

POINT II

THE KEY YET ABSTRACT ACCOMPLICE INSTRUCTION WAS ERRONEOUS SINCE IT DID NOT INFORM THE JURY THAT IT COULD FIND SANCHEZ GUILTY OF THE LESSER AND CHARGED OFFENSE OF [DESECRATION] OF HUMAN REMAINS, RATHER THAN MURDER, THEREBY REQUIRING THE REVERSAL OF SANCHEZ'S CONVICTIONS AND A NEW TRIAL. (NOT RAISED [B]ELOW).

POINT III

THE ABSENCE OF AN INSTRUCTION ON CAUSATION, ESPECIALLY SINCE THE CO-DEFENDANT DELIVERED THE FATAL STAB WOUND, REQUIRES THE REVERSAL OF SANCHEZ'S CONVICTIONS AND A NEW TRIAL. (Not Raised Below).

Finding no merit in defendant's arguments, we affirm the judgment of conviction.

A Bergen County grand jury charged defendant in nine counts of a ten-count indictment with first-degree murder, N.J.S.A. 2C:2-6 and 2C:11-3(a)(1) and (2); second-degree desecration of human remains, N.J.S.A. 2C:2-6 and 2C:21-1(a); second-degree disturbing, moving, or concealing human remains N.J.S.A. 2C:2-6 and 2C:22-1(a); two counts of possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:2-6 and 2C:39-4(d); two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and two counts of third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) and -3(b)(4). A jury found defendant guilty on all counts. At sentencing, after merging certain counts, a judge sentenced defendant to life imprisonment on the first-degree murder charge subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.21; a consecutive ten-year custodial term on the second-degree desecration of human remains count; a concurrent ten-year custodial term on the second-degree disturbing human remains count; concurrent five-year custodial terms on the two third-degree counts of possession of a weapon for an unlawful purpose; a consecutive five-year custodial term on one count of third-degree hindering apprehension; and a concurrent five-year custodial term on the other third-degree count of hindering apprehension.

During the trial, the State presented the testimony of the victim's sister, two of the victim's neighbors, numerous law enforcement officers, forensic experts, and co-defendant Pedro Garcia. Defendant presented no witnesses.

The State's proofs established the homicide occurred in the victim's small, Cliffside Park apartment between 12:30 and 1:30 in the morning of January 9, 2011. Later that day, the victim's sister contacted local law enforcement officers and reported her brother missing. The authorities began investigating the victim's disappearance. The following day, Monday, January 10, a Detective and cadaver canine searching within a three-block radius of the victim's apartment discovered a garbage bag on church property and two other garbage bags at a construction site, all containing the victim's partial remains.

During the ensuing homicide investigation, law enforcement officers recovered evidence from the victim's apartment, which they searched after obtaining a warrant; and from defendant's apartment, which they searched after obtaining his consent. Detectives also recovered surveillance video from two businesses and a home near the victim's apartment. The surveillance videos recorded defendant and Garcia carrying garbage bags during the early morning of January 9, 2011, the morning of the homicide.

Co-defendant Garcia testified against defendant. Garcia testified he befriended the victim approximately six years before the homicide. He lived with the victim for about four months in 2009, then began living with him again the third week in December 2010. Defendant would sometimes stay at the victim's apartment overnight.

On Saturday, January 8, 2011, defendant arrived at the victim's apartment at approximately 6:00 p.m. Defendant's brother had called some people and invited them over to have a party. There were approximately nine people present in the apartment when the victim arrived at 10:00 p.m.

The victim was gay. Two or three people at the party were also gay. Although the victim's sister had testified the victim and Garcia once had a romantic relationship, Garcia insisted he was not gay and he and the victim were merely friends. According to Garcia, defendant fell asleep around 10:30 p.m. People started leaving the apartment shortly after midnight and by 12:30 a.m. on January 9, everyone had gone except Garcia, defendant, and the victim.

Garcia was sitting on the bed where defendant was sleeping. The victim turned the lights out in the room "[a]nd he lied down on the bed quickly and he began to sort of like want to unbutton [defendant's] pants." Defendant moved. Garcia told the victim "[t]o leave the guy asleep because he was sleeping and was going to hit you." The victim became furious, started screaming, and told Garcia to leave. The screaming woke defendant, who asked Garcia what was going on with the victim. When Garcia responded that the victim was acting crazy, the victim told defendant, "you get out of here too, you asshole. I don't want to see you here." That is when the violence began.

Defendant jumped up and started beating the victim. The victim fell to the floor face up, onto a plate, which broke and cut the victim's back. Defendant used his left hand to grab the victim by the neck while hitting the victim with this right hand. The victim put up his hands to defend himself and asked defendant to stop. When the victim got up, he said: "No, this isn't going to end here. I'm going to call the police." As he went to the door to open it, defendant grabbed him by the hand, pulled him, and hit him again, knocking him to the floor. Defendant got a piece of the plate that had broken and put it to the victim's neck, saying, "I'm not Garcia." Garcia understood the comment to mean that he, Garcia, did not "have the courage to do this to you but [defendant] does."

Garcia next testified that when defendant saw the victim bleeding from his mouth and back, defendant grabbed the victim by the hand, went into the bathroom, and started running water, which the victim said was too hot. As this was happening, defendant's comment that he was not Garcia triggered in Garcia thoughts of the victim telling people Garcia was his boyfriend. According to Garcia, the victim had told the mother of Garcia's child Garcia was his boyfriend.

Garcia became enraged, retrieved a knife from a kitchen cabinet, returned to the bathroom, and cut the victim's neck. Blood shot out. Garcia gave defendant the knife and went to the kitchen to wash his hands. He could hear the victim telling defendant to call an ambulance. When Garcia returned to the bathroom, he had retrieved a different knife from the kitchen. He saw that defendant had cut the victim in the stomach. The victim was pleading for Garcia and defendant to call an ambulance.

As the victim begged for his life, defendant said: "Well, if we call the ambulance the police are going to come as well and this asshole is going to fuck us up." For that reason, defendant decided, "We have to finish him off." Garcia told defendant, "[g]et out, I'll do it." Defendant went to the kitchen and Garcia stabbed the victim in the neck a second time.

The victim fell to the ground and Garcia left the room. Defendant returned and said: "So, well, . . . we have to cut him up." Defendant went to the kitchen, retrieved a bag and a box of gloves, and then the pair started to dismember the victim's body. Garcia started by cutting off the victim's head.

After decapitating the victim, defendant and Garcia put his body on a bed sheet, took it outside, and placed it in a parking lot. Fearing someone would see them, defendant said, "let's take him back inside." They carried the body into the apartment and defendant put the body in the bathtub and filled it up. He said to Garcia, "Well, there's nothing else we can do but chop him up." The men then took turns dismembering the body. While dismembering the victim, Garcia accidentally cut defendant on the finger.

The men placed the victim's dismembered body parts into separate garbage bags and eventually carried them out, dumping them at various locations, including the premises of a church, a construction site, and a hardware store. They put the knives, their clothes, and "everything [they] used to clean the apartment" into a bag or bags containing the body parts.

When arrested, Garcia initially denied killing the victim. Once confronted with the video surveillance and other evidence, however, he gave a written confession.

An expert in forensic pathology and employee of the medical examiner's office testified the cause of the victim's death was a stab wound to the left side of the victim's neck that severed his jugular vein. The State also presented considerable forensic and circumstantial evidence corroborating defendant's participation in the homicide. For example, the pattern of a plate found in one of the body bags matched both a plate and a piece of a dinner plate in the victim's apartment. A sock with an American flag logo was found in a bag with the body parts, and the same type of sock was found in defendant's apartment. Defendant was a painter by trade. One of the bags contained a pair of jeans with paint stains on them, and paint stains were found on jeans seized from defendant's apartment. Additionally, police seized several t-shirts from defendant's apartment with the sleeves cut off. A sleeveless t-shirt was found in one of the bags containing the body parts. Also, a shower curtain, pillows, toilet paper rolls, a knife sharpener, and knives identified by the victim's sister as coming from his apartment were found in the bags containing the victim's body parts.

When defendant was arrested, he was wearing a t-shirt with the sleeves cut off. His arrest photograph disclosed a mark on his right wrist and two cuts on his fingers.

On appeal, defendant first argues the trial court erred by omitting to instruct the jury on passion-provocation manslaughter, reckless manslaughter, and aggravated assault. We disagree.

An offense is a lesser-included offense when

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

[N.J.S.A. 2C:1-8(d).]

A trial 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). For that reason, when a defendant requests a charge on a lesser-included offense, the trial court must apply a two-prong test to determine if the charge is appropriate: first, the court must determine whether the requested charge satisfies the statutory definition of an included offense; second, there must "be a rational basis in the evidence to support a charge on that included offense." State v. Cassady, 198 N.J. 165, 178 (2009) (quoting State v. Thomas, 187 N.J. 119, 131 (2006)). The second prong is satisfied "when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004) (citations omitted); see also State v. Brent, 137 N.J. 107, 117 (1994).

Defendant asserts the court should have charged the jury on passion/provocation manslaughter because "there was evidence that [defendant] was provoked by [the victim's] attempt to sexually assault him." Defendant does not cite to the evidentiary record to support this proposition; rather, he cites a remark made by the prosecutor during summation. We fail to discern in the record any evidence to support defendant's assertion.

Garcia described what the victim did when he sat on the bed next to defendant, who was sleeping: "he lied down on the bed quickly and began to sort of like want to unbutton [defendant's] pants." Garcia also explained that defendant "moved." Garcia did not, however, testify the victim actually unbuckled defendant's pants. Nor was there any evidence defendant was aware of what had occurred. Rather, Garcia testified the victim's subsequent screaming woke defendant. In fact, Garcia told the victim "[t]o leave the guy asleep because he was sleeping and he was going to hit you."

Passion/provocation manslaughter occurs when "[a] homicide which would otherwise be murder . . . is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). The evidence simply does not support defendant's argument that he participated in the homicide while in the heat of passion resulting from a reasonable provocation. Moreover, defendant made no such argument. He denied participating in the homicide.

Even if defendant had been aware of the victim's advance a proposition unsupported by the record defendant had already stopped beating the victim and had taken him into the bathroom when Garcia retrieved a knife and cut the victim's throat. There is no evidence defendant so much as uttered a comment suggesting he was aware that the victim had intended to unbuckle his pants, let alone that he remained provoked by the action. Certainly, no evidence suggests defendant was enraged by the victim's alleged act after Garcia stabbed the victim in the neck and left the bathroom, leaving defendant to cut the victim's stomach. In short, nothing in the evidence supported a charge of passion/provocation manslaughter.

The same is true of aggravated manslaughter, defined in N.J.S.A. 2C:11-4(a)(1): "The actor recklessly causes death under circumstances manifesting extreme indifference to human life." Nor did the evidence support a charge of manslaughter, that is, a homicide "committed recklessly." N.J.S.A. 2C:11-4(b)(1). The State's proofs established defendant had formulated the specific purpose of taking the victim's life.

Our Supreme Court has explained the difference between murder and aggravated manslaughter. To prove a defendant had

the state of mind required for murder premised on the infliction of serious bodily injury, . . . . [i]t must demonstrate that "defendant's conscious object [was] to cause serious bodily injury that then resulted in the victim's death" and that defendant "knew . . . that the injury created a substantial risk of death and that it was highly probable that death would result."

[Jenkins, supra, 178 N.J. at 362 (emphasis and second alteration in original) (quoting State v. Cruz, 163 N.J. 403, 417-18 (2000)).]

"Aggravated manslaughter requires the State to prove that 'the defendant was aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result, and that the defendant manifested extreme indifference to human life.'" Ibid. (emphasis in original) (quoting Cruz, supra, 163 N.J. at 417).

Here, defendant neither recklessly inflicted nor participated in the reckless infliction of an injury upon the victim. To the contrary, defendant formulated the specific intent to kill, telling Garcia after the victim requested an ambulance and begged for life: "Well, if we call the ambulance the police are going to come as well and this asshole is going to fuck us up. We have to finish him off." Garcia agreed. Garcia "finished him off," and defendant and Garcia thereafter mutilated the victim's corpse to conceal their deliberate and purposeful killing. Nothing in the record suggested they acted recklessly, rather than purposely.

Defendant also argues the trial court should have instructed the jury on the elements of aggravated assault, even though defendant had not requested instructions on that offense. We disagree.

When a defendant has not requested a charge on a lesser included offense, such a charge "must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). As previously noted, "the facts in evidence adduced at trial [must] clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361.

Here, the facts did not clearly indicate the jury could have convicted defendant of aggravated assault while acquitting him of murder. The evidence established defendant stabbed the victim in the stomach after Garcia had stabbed the victim in the neck. Defendant's statement that he and Garcia had to finish the victim off demonstrated his intent to kill the victim. Nothing in the evidence clearly indicated a jury could convict defendant of assault while acquitting him of homicide. Consequently, the trial court did not err by failing to charge the jury, sua sponte, on the crime of aggravated assault.

Defendant's final two arguments the court did not properly instruct the jury on accomplice liability and did not instruct on causation are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant did not object to the accomplice liability instruction which conforms substantially to the Model Jury Charge. Nor did defendant object to the court's charge: "Whether the killing is committed purposefully or knowingly, causing death or serious bodily injury resulting in death must be within the design or contemplation of the defendant." Model Jury Charges (Criminal), Murder, N.J.S.A. 2C:11-3(a)(1) and (3)(a)(2), (revised 2004).

Defendant did not dispute the cause of the victim's death. Rather, he attempted to persuade the jury he did not participate in killing the victim, but only participated in the disposal of the victim's remains. In view of the undisputed cause of death, defendant's theory of the case, and defendant's failure to raise the issues at trial, we find no plain error in the charge as given. Savage, supra, 172 N.J. at 387 ("Because those instructions were never objected to at trial, they must be evaluated under the plain error standard."); R. 2:10-2.

Affirmed.

1 A life sentence is deemed to be seventy-five years for purposes of NERA. N.J.S.A. 2C:43-7.2(b).