NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5529-06T45529-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HIPOLITO RUIZ,

Defendant-Appellant.

Submitted February 5, 2008 - Decided

Before Judges Skillman, Winkelstein and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 05-06-0831-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

WINKELSTEIN, J.A.D.

A grand jury indicted defendant Hipolito Ruiz for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1), for causing the death of fifteen-month-old Angel Sandoval. Following three days of deliberations, a jury acquitted defendant of aggravated manslaughter and was deadlocked on the unindicted lesser-included offense of reckless manslaughter. The trial court declared a mistrial and ordered that defendant could be retried for reckless manslaughter.

On leave to appeal, we are asked to decide whether defendant can be retried on the lesser-included offense after the jury acquitted him of the sole charge in the indictment. We conclude that he can, and hold that when a jury acquits a defendant of the offense charged in the indictment, retrial for a lesser-included offense on which the jury has been unable to agree is not constitutionally barred.

The trial produced the following evidence.

Nelida Molinary lived in Brooklyn with her children, including Sheila, who was eleven years old, and Angel Sandoval. Defendant lived in Carteret, New Jersey. He and Molinary had a dating relationship and occasionally stayed at each other's apartments. Molinary trusted defendant with her children; she had told a New York social service agency that he was good with them, especially with Angel.

On the weekend of April 2, 2005, Angel spent a night at defendant's apartment, along with defendant's one-year-old son, and defendant's stepson, Joseph. According to defendant, Angel sustained scratches on the side of his head and on his ear when he fell off the bed. Molinary testified that defendant told her that Angel had also run into a table that weekend. Joseph remembered Angel falling once, that he "was fine," and that Angel and Joseph's younger brother had been jumping on the bed and running around the house. Joseph said that Angel also had old bruises that appeared to be healing.

On Friday, April 8, 2005, defendant called out of work sick. Molinary took four of her children to school, leaving Angel and his brother Justin with defendant. Angel was active that day, playing, running, and jumping with his sisters and brothers. Nevertheless, defendant saw Angel "dangling with his head on the stroller."

That night, Molinary's friends, Elizabeth D. and Tylor A., brought their daughter Kayla to her apartment. While they were there, defendant remained in the bedroom. After Kayla, who was two or three years old, bit Angel, Molinary put Angel in the bedroom with defendant, where they both fell asleep.

The next day, Angel spent most of the morning in the bedroom with defendant, but he also played with his siblings and ate his sandwich. Elizabeth testified, however, that Angel only sucked on the bread. While Molinary bathed Angel and changed his diaper, she did not see any marks on his body.

Around noon or 1 p.m., Molinary drove to her daughters' grandmother's house; defendant, Angel and two of Molinary's daughters went with her. In the car, Angel seemed tired and he lay down in the back seat. Defendant said Angel looked sick and drowsy that day, not running around as he normally did.

Later that afternoon, defendant drove to his apartment, accompanied by Sheila and Angel. During the ride, Angel was sleepy and cranky, and he had diarrhea and vomited, but did not cry. Angel "fell on his butt" three times while attempting to walk from the car to defendant's apartment building. Inside, while washing Angel, defendant saw marks on Angel's chest, and he noticed that Angel had a rash. Angel drank his bottle and went to sleep in defendant's bed.

While Sheila was in the living room, defendant, who was still not feeling well, lay down on his bed next to Angel and watched a movie. Defendant fell asleep and awoke multiple times. One time when he awoke, he noticed that Angel had diarrhea. Sheila testified that Angel had vomited again and she took him into the bathroom, where she removed his clothes and diaper to clean him. When she did, she saw marks on his knee and head and his skin color was turning yellow. He was taking "big gulps of air," and his eyes "rolled back and he just fell into [her] arms." At that point, she called for defendant to change Angel, who clenched his hands and started to shake.

Defendant called Molinary, and then either he or Sheila dialed 911. Defendant told the 911 dispatcher that Angel "wasn't breathing." The dispatcher gave defendant resuscitation instructions.

When Carteret police officer Phillip Esposito arrived at defendant's apartment, Angel was "shaking as if he [were] having a seizure," and "wheezing like he couldn't breathe." Esposito saw "a large number of bruises on [Angel's] legs, his abdomen, and his head." Defendant denied knowledge of the bruises. Esposito testified that defendant was "concerned for the health of the child."

Jennifer Brockop of the Carteret First Aid squad saw several bruises on Angel; his pulse was faint and he was not breathing. She also observed cuts on his lip and ear, with scabbing on the ear wounds. Some of his injuries appeared older than others. Efforts to revive Angel failed, and he was pronounced dead at approximately 9:15 p.m.

Investigator Todd Gerba spoke with Molinary, who had arrived from Brooklyn. She told him that Angel had a fever and bruising on his stomach and face before leaving Brooklyn. She believed the bruises might have been caused by the stroller accident the previous night.

Dr. Andrew Falzon, the medical examiner, performed an autopsy. He found abrasions on Angel's hairline, right cheek, upper lip, right ear, left ear, and bruises on his head, abdomen, and shins. Angel's liver was lacerated, which caused him to bleed into his abdominal cavity. Dr. Falzon testified that the liver injury was consistent with a blow to the upper abdomen, and it was unlikely that it was caused by a "common fall." He opined that the injury could have been caused by a fist, a foot, an elbow, or by falling onto an object with a high degree of force.

Dr. Falzon opined that the injury was at least two hours old at the time of Angel's death, and that Angel was likely to have survived between four and six hours from the time he sustained the injury. The doctor also suggested that, having sustained this type of injury, Angel "would [have been] in severe pain and very irritable and crying." He then would have become less active before going into shock. In Dr. Falzon's opinion, Angel died of "intraperitoneal hemorrhage due to a laceration of the liver due to blunt force trauma to the abdomen," and the manner of death was homicide.

In August 2006, Investigator Gerba received a letter from Lawrence McLendon, an inmate at the Middlesex County Adult Correctional Center, where defendant was being held pending trial. The letter stated that defendant "identified himself as the murderer of Angel Sandoval." At trial, McLendon testified that defendant told him that he was charged with the "murder of a male," and that he "didn't do it." McLendon further testified that defendant told "four or five" other inmates, in an "aggressive, unremorseful, bragging" manner, that he "got a body," implying that he had killed someone. Defendant later told him that he spanked the baby to keep him from crying, and that he lay down next to the baby, but the baby became restless, so he "shot the baby an elbow." Defendant denied speaking to McLendon about Angel.

Dr. Douglas Miller, Professor of Neuropathology and Neurosurgery at New York University School of Medicine, testified as an expert for the defense. It was his opinion that Angel's fatal injury occurred between two and twelve hours before his death, and likely close to six hours preceding his death. He opined that an individual could not deliver enough force with his elbow to cause Angel's injury, but a kick could generate the requisite force. He testified that all of the bruising on Angel's body occurred within the last forty-eight hours of his life, and that it occurred within the same time frame as the liver laceration. He opined that Angel was "not struck just once." He testified that Angel's inability to walk at approximately 4:15 p.m. was consistent with a conclusion that he already had been injured.

After the close of the evidence, the trial court ruled, over defendant's objection, that it would instruct the jury to consider reckless manslaughter as a lesser-included offense of the charged crime, aggravated manslaughter. Accordingly, the court instructed the jury on the proper procedure to follow to consider the lesser-included offense.

The jury began deliberating on Thursday, May 10, and continued on May 11 and May 14. On the latter date, the jury submitted a note to the court stating that it was deadlocked. The court provided an appropriate supplemental charge and instructed the jury to continue its deliberations. See State v. Czachor, 82 N.J. 392, 405-07 (1980) (explaining jurors' duty to consult and deliberate). Later that day, the jury submitted a verdict in the form of a handwritten note, rather than on the verdict sheet the court had provided. The jury found that defendant was not guilty of aggravated manslaughter, but it remained deadlocked on the reckless manslaughter charge. The note also stated: "Upon [f]urther examination of facts & testimony, each & every juror believe[s] we have made a sound, correct & final decision."

The court accepted the verdict acquitting defendant of aggravated manslaughter, declared a mistrial on reckless manslaughter, and subsequently ordered that the State could retry defendant for the latter offense. On appeal, defendant makes two primary arguments. First, he claims that the evidence did not support a reckless manslaughter charge as a lesser-included offense of aggravated manslaughter. Second, he asserts that a defendant cannot be retried on a lesser-included offense for which he was not indicted, if he is acquitted of the greater offense. We begin our discussion with whether the evidence supported the reckless manslaughter charge.

I

The New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-8d, codifies the common-law rule that an accused may be convicted of a lesser-included offense. State v. Stanton, 176 N.J. 75, 98-99, cert. denied, 540 U.S. 903, 124 S. Ct. 259, 157 L. Ed.2d 187 (2003). "A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense." N.J.S.A. 2C:1-8d. An offense is included 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

. . . .

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

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

A lesser-included offense charge is warranted when (1) "the requested charge satisf[ies] the definition of an included offense set forth in N.J.S.A. 2C:1-8d, and (2) . . . there [is] a rational basis in the evidence to support a charge on that included offense." State v. Thomas, 187 N.J. 119, 131 (2006); see also N.J.S.A. 2C:1-8e (included offense should not be charged "unless there is a rational basis for a verdict convicting the defendant of the included offense"). "[A] rational basis in the evidence for a jury to acquit the defendant of the charged offense [is also necessary] before the court may instruct the jury on an uncharged offense." State v. Brent, 137 N.J. 107, 113-14 (1994).

Properly charged lesser-included offenses are constitutionally permissible. The New Jersey Constitution provides that "[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury," N.J. Const. art. I,