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N.J.S.A. 2C:11-3(a)(1) and (2) (count one); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three). Defendant appeals from his convictions on all charges and sentence. We affirm. "> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is .) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0110-08T40110-08T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. CARLOS RAMON GUTIERREZ aka CARLOS WEZ aka WEZ GUTIERREZ aka CURTIS GARY, Defendant-Appellant. ________________________________________________________________

Argued on February 24, 2010 - Decided Before Judges Axelrad and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-05-486. Michael Chazen argued the cause for appellant. Meredith L. Balo, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Balo, of counsel and on the brief). PER CURIAM Defendant Carlos Ramon Gutierrez was indicted on charges of murder, N.J.S.A. 2C:43-7.2, followed by a five-year term of parole supervision, and appropriate fines and penalties. In this appeal, defendant raises the following issues: POINT I
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EXCLUSION OF THE DEFENDANT'S FAMILY MEMBERS FROM THE COURTROOM DURING JURY SELECTION VIOLATED THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL, THUS REQUIRING REVERSAL OF THE CONVICTION AND REMAND FOR A NEW TRIAL. (RAISED BELOW). POINT II THE TRIAL COURT VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS IN FAILING TO CHARGE THE JURY AS TO AGGRAVATED MANSLAUGHTER, THUS REQUIRING REMAND FOR A NEW TRIAL. (RAISED BELOW). POINT III THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT ALLOWED INTO EVIDENCE THE AUTOPSY REPORT OF THE DECEDENT VICTIM, JOSE RIASCOS, DEPSITE THE FACT THAT THE MEDICAL EXAMINER WHO PREPARED SAME DID NOT TESTIFY (RAISED BELOW). POINT IV THE SENTENCE IMPOSED ON DEFENDANT IS IMPROPER, EXCESSIVE AND SHOCKS THE CONSCIENCE. We find no merit in any of these arguments. I Defendant argues that he was deprived of his constitutional right to a public trial because members of his family were excluded from the courtroom during jury selection. In State v. Venable, we held that, without an objection by the defendant or other evidence that the public was actually excluded from a jury selection, any claimed denial of the right to a public trial is "hypothetical" and does not merit reversal. ___ N.J. Super. ___, ___ (App. Div. 2010) (slip op. at 12-13). Further, we found that the refusal to admit members of the family, without a showing that others were excluded, did not violate the defendant's Sixth Amendment rights. Ibid. Here, it was conceded that the trial court neither took any action to exclude family members nor failed to respond to any request for accommodation of family members. To the contrary, the record shows that the trial court responded with consummate courtesy when counsel first raised the issue and again when it was raised during the motion for a new trial. At the time of the motion, the court said, "[I]f it had been brought to my attention when it happened, if it did happen, I certainly would have tried to make other accommodations." This was entirely consistent with his earlier statement on the subject. We therefore conclude that, even if family members were unable to be present during jury selection, defendant did not suffer any cognizable violation of his constitutional rights. II

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We turn to defendant's contention that the court committed reversible error in failing to charge aggravated manslaughter to the jury. The court discussed at length its opinion that the evidence did not warrant any charges based on a finding of recklessness, including the charge on aggravated manslaughter, and repeatedly invited counsel to identify evidence that would support such charges. Defense counsel attempted to justify the charge by referring to the evidence as showing that all involved in the events that evening were acting recklessly. When the court was unpersuaded, defense counsel did not object, either at the charge conference or after the charge was given. Rule 1:7-2 explicitly provides that no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict . . . . Although this issue was raised in a motion for a new trial, that argument obviously was not made "before the jury retire[d] to consider its verdict. " Accordingly, we review the issue pursuant to the plain error standard to determine whether the failure to charge aggravated manslaughter was error clearly capable of producing an unjust result. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997). Plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed.2d 797 (1970). Our review of the evidence leads to the conclusion that it was not error, let alone plain error, for the trial court to deny an aggravated manslaughter charge here. 187 N.J. 119, 131 (2006). As the trial court correctly observed, the meaning of a "rational basis" here is that the evidence must present "a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Cassady, 198 N.J. 165, 178 (2009) (quoting State v. Brent, 137 N.J. 107, 117 (1994)). See also State v. Jenkins, 178 N.J. 347, 361 (2004) (applying plain error standard, trial court has "an independent obligation to instruct on lesser-included charges [only] when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.") For the murder conviction here, the State was required to prove that defendant "[(1)]knowingly or purposely inflicted serious bodily injury with actual knowledge that [(2)]the injury created a substantial risk of death and [(3)]that it was 'highly probable' that death would result." State v. Wilder, 193 N.J. 398, 409 (2008) (citing Jenkins, supra, 178 N.J. at 363). A defendant commits aggravated manslaughter if he or she causes death with "an awareness
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and conscious disregard of the probability of death." Ibid. Plainly, both offenses include knowledge or an awareness of a risk of death as essential elements. It is, therefore, important that the aggravated manslaughter element, a conscious disregard of a substantial risk of death, not be read so broadly as to encompass conduct that qualifies as purposeful murder. Essentially the distinction is between inflicting the harm with "design or contemplation" and inflicting the harm when it is merely within the risk of which the actor is aware. The Supreme Court noted that in determining whether the defendant acted with an extreme indifference to human life, "the focus is not on the defendant's state of mind, but on the circumstances under which the defendant acted." Wilder, supra, 193 N.J. at 409 (quoting Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:11-4 (2007)); see also State v. Cruz, 163 N.J. 403, 417-18 (2000). Defendant's use of a deadly weapon here permitted an inference that defendant intended to kill or cause serious bodily injury that resulted in death. State v. Martini, 131 N.J. 176, 269-274 (1993). However, the use of a deadly weapon is but one circumstance to be considered. The number and location of intentionally inflicted wounds as well as the defendant's demeanor and surrounding circumstances are all significant factors. See, e.g., Cruz, supra, 163 N.J. at 418 (if death was caused by a deliberately inflicted gunshot wound to a victim's knee, that act did not create a substantial risk of death that was highly probable, and therefore, should ordinarily be charged as aggravated manslaughter); State v. Bishop, 225 N.J. Super. 596, 600-601, 604, 605 (App. Div. 1988) (rational basis to charge aggravated manslaughter found where defendant stabbed a victim unknown to him in the midst of a twenty-person "free for all" while defendant was "out of control" and "waving a knife around"). As the trial court noted here, the victim was stabbed six times. The victim was stabbed both in the front and in the back, the latter wounds supporting an inference that the victim was stabbed while he was in a defensive mode, or at least posing no threat to his assailant. See State v. Jones, 308 N.J. Super. 15, 39 (App. Div. 1998) (fact that victim was struck with a bat while supine was relevant to whether murder was purposeful and knowing). Unlike the hypothetical gunshot to the knee in Cruz, the victim here was stabbed in areas that exposed vital organs to injury. Moreover, it is evident that the wounds were inflicted forcefully since the victim's rib and heart were both cut through and his lung was pierced. The circumstances of the attack also merit attention. The evidence permitted inferences that there was mutual combat between defendant and the victim and that there may have been an additional attacker. For this reason, the trial court appropriately gave the jury instructions on aggravated assault and simple assault based upon
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mutual combat. The trial court also viewed the evidence that the victim had thrown his jacket at defendant as sufficient to warrant a charge on passion/provocation manslaughter. However, the evidence also showed that the altercation involving Riascos and other QVOS patrons was largely verbal, had not caused injury to anyone and had ended before defendant left QVOS. Riascos was intoxicated and unarmed. There was no evidence that defendant approached Riascos pursuant to a request from his employer or otherwise pursuant to his duties as a bouncer. The evidence failed to show any need for defendant to become embroiled in a confrontation with Riascos or to use a knife to defend himself or anyone else. In summary, the evidence here showed that defendant used a deadly weapon, repeatedly and forcefully, against an unarmed and intoxicated man who posed no threat to him. He inflicted wounds to areas of the victim's body that presented a substantial risk of serious injury to critical organs as well as to the victim's back, reflecting the defenseless posture of the victim. Against this record, we conclude that the evidence that defendant acted purposefully in inflicting these wounds was compelling and that there was no rational basis for a jury to find that defendant had merely acted recklessly in inflicting the fatal injuries. As a result, the trial court did not err in declining to give a charge on aggravated manslaughter. III After carefully considering the record and briefs, we are satisfied that defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments. Although the trial court ruled that the autopsy report could be received in evidence, the contents of the report were neither provided to the jury nor discussed in summations before the prosecutor withdrew it from evidence. Since the report itself was never before the jury, the claim that there was a violation of defendant's Sixth Amendment confrontation clause rights is entirely without merit. As for defendant's challenge to his sentence, appellate review entails the following determinations: (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience. [State v. Megargel, 143 N.J. 484, 493 (1996).] The standard of review is one of deference. "[A]s long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record[,]" the

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sentence should be affirmed State v. O'Donnell, 117 N.J. 210, 215 (1989). Defendant does not contend that any of the aggravating factors found by the trial court were not supported by the record or that the court failed to find an appropriate mitigating factor. The trial court correctly applied the correct legal principles and did not abuse its discretion in imposing sentence. Affirmed.

The abrasions were located on the right side of the cheek area; the right side of the upper lip; the left side of the abdominal area; in the back of the right middle finger; two additional abrasions on the back of the left middle finger; one on the back and side of the right forearm and one at the side of the right wrist area. Notwithstanding defendant's assertion that the issues argued in Points I and II were raised below, there was no objection at trial to the exclusion of family members or to the charge. In a footnote in his reply brief, defendant attempts to raise the issue of ineffective assistance of counsel based on counsel's failure to object. Issues may not be presented for appellate review by inclusion in a reply brief, State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed.2d 256 (1970); Warren Twp. v. Suffness, 225 N.J. Super. 399, 412 (App. Div. 1988), certif. denied, 113 N.J. 640 (1988), or by inclusion in a footnote. See Almog v. ITAS, 298 N.J. Super. 145, 155 (App. Div. 1997), appeal dismissed, 152 N.J. 361 (1998); R. 2:6-2(5). Moreover, claims of ineffective assistance of counsel are more appropriately raised in a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992). wvWare/wvWare version 1.0.3 --> This archive is a service of Rutgers School of Law - Camden. This archive is a service of Rutgers School of Law - Camden.

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