STATE OF NEW JERSEY VS. MARCO TULIO-ALVAREZ LOPEZ (15-05-1070, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2654-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCO TULIO-ALVAREZ LOPEZ,

Defendant-Appellant.
_____________________________

Argued May 15, 2018 – Decided July 17, 2018

Before Judges Reisner, Hoffman, and Mayer.

On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No.
15-05-1070.

Daniel S. Rockoff, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Daniel S. Rockoff, of counsel and on the
brief).

Roberta DiBiase, Supervising Assistant
Prosecutor, argued the cause for respondent
(Joseph D. Coronato, Ocean County Prosecutor,
attorney; Samuel Marzarella, Chief Appellate
Attorney, of counsel; Roberta DiBiase, on the
brief).

PER CURIAM
 Defendant Marco Tulio-Alvarez Lopez appeals from his

conviction for first-degree attempted murder, N.J.S.A. 2C:5-1 and

N.J.S.A. 2C:11-3(a)(1), third-degree possession of a knife for an

unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful

possession of a knife, N.J.S.A. 2C:39-5(d). He also appeals from

the sentence of fifteen years in prison, subject to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.

I

Defendant was accused of stabbing his roommate (the victim),

after the victim refused to lend defendant money. The victim

suffered what the emergency room doctor described as a life-

threatening stab wound to "the left side of his lower chest." The

police found a bloody knife at the crime scene. The victim

identified defendant as the man who stabbed him. According to the

victim, after he refused to lend defendant fifty dollars, defendant

exclaimed, "that's what you want," and stabbed the victim.

Defendant then told a companion, "let's get out of here."

The landlord of the house, where defendant and the victim

shared a rented room, told the police that, right after the

incident, the victim stated that his roommate stabbed him. The

landlord identified defendant as being the victim's roommate. The

landlord also told the police that he saw defendant and another

man running from the house, shortly after the stabbing. There was

2 A-2654-15T3
no dispute that defendant was the victim's roommate, although the

landlord knew him as "Juan" and the victim knew him as "Lucas."1

The police found identification and correspondence with

defendant's correct name on it, in a suitcase on one of the beds

in the shared bedroom.

About two and a half hours after the stabbing, the police

observed defendant walk from the back of the house and duck under

the crime scene tape they had used to secure the scene. Defendant

was shirtless and covered in fresh scratches, with a deep cut on

one hand. From defendant's appearance, the police surmised that

he had been in the heavy growth of woods and sticker bushes behind

the house. The police arrested defendant and photographed him.

From the photograph, both the landlord and the victim identified

defendant as the victim's roommate.

In a statement to the police, given on the night of the

incident, defendant denied stabbing the victim and gave several

different explanations for his whereabouts that evening. First,

he claimed that he slept through the entire incident. Then he

1
Both the victim and the landlord testified that they were
undocumented immigrants. According to the landlord, he rented
rooms to people without checking their backgrounds or even asking
for their last names. The victim testified that he first met
defendant on the street a few months before the stabbing incident,
and he let defendant room with him because defendant had no job,
no food, and nowhere to live.

3 A-2654-15T3
stated that he was sitting in a closet thinking for a couple of

hours, before coming outside to see what was happening. He later

claimed that when the police first saw him, he was returning from

urinating outside. Defendant denied running away from the house,

and asserted that the scratches all over his torso were the result

of his work as a roofer.

However, a police canine handler, called as a defense witness,

testified that on the night of the stabbing, when the police were

still searching for the suspect, she let a police bloodhound sniff

a sock taken from defendant's suitcase in the bedroom. The dog

then tracked the scent from the house to the parking lot of an

apartment complex some distance away, before losing the scent.

The parking lot was not far from the large tract of dense woods

that extended past the back of the house.

II

On this appeal, defendant raises the following points of

argument:

POINT I: THE COURT ERRED BY DENYING THE
DEFENDANT'S PRE-TRIAL MOTION FOR A WADE
HEARING TO TEST THE RELIABILITY OF THE
IDENTIFICATION OF THE DEFENDANT AS THE
PERPETRATOR.

POINT II: THE COURT ERRED BY REFUSING TO LET
THE JURY LEARN THAT THE ACCUSER HAD A BLOOD
ALCOHOL CONTENT GREATER THAN .16 PERCENT, EVEN
AFTER THE ACCUSER LIED AND TESTIFIED THAT HE
HAD NOT BEEN INTOXICATED.

4 A-2654-15T3
 POINT III: THE COURT ERRED BY REFUSING THE
DEFENDANT'S REQUEST TO INSTRUCT THE JURY ON
ITS DUTY TO ASSESS THE SYSTEM VARIABLES.

POINT IV: THE COURT FAILED TO INSTRUCT THE
JURY ON ITS DUTY TO ASSESS WHETHER THE
DEFENDANT ACTUALLY MADE ALLEGED OUT-OF-COURT
STATEMENTS CITED BY THE STATE TO PROVE THE
IDENTIFICATION WAS RELIABLE. (Not Raised
Below)

V. THE CUMULATIVE PREJUDICIAL EFFECT OF THESE
ERRORS WAS THAT NO FACTFINDER EVER CRITICALLY
EVALUATED THE SYSTEM OR ESTIMATOR VARIABLES
ESSENTIAL TO THE MISIDENTIFICATION DEFENSE.

VI. THE SENTENCING COURT INAPPROPRIATELY CITED
ELEMENTS OF THE CRIME AS A BASIS FOR FINDING
AGGRAVATING FACTORS N.J.S.A. 2C:44-1A(1)-(2).

After reviewing the record, we find no basis to disturb the

conviction or the sentence. Defendant's points IV and V are

without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). We address defendant's remaining

arguments below.

III

Defendant first argues that the trial court erred in denying

his motion for a testimonial Wade2 hearing to challenge the

identifications made by the landlord and the victim. We affirm

on this issue substantially for the reasons stated by the trial

judge in her oral opinion on July 17, 2015. We add these comments.

2
United States v. Wade, 388 U.S. 218 (1967).

5 A-2654-15T3
 The following information is derived from the record of the

Wade motion. During the investigation, the police learned that

the victim claimed his roommate stabbed him, and the landlord saw

the roommate running from the house shortly after the stabbing.

In the landlord's statement to the police, it was clear that,

immediately after the stabbing, the victim indicated his roommate

stabbed him. According to the landlord, the victim told him, "I'm

going to die, he stabbed me bad . . . If I knew, I wouldn't bring

him to live here." There was some question as to whether the

roommate might be using an alias. The landlord told the police

that he knew the roommate by the name "Juan Reyes."

The police showed defendant's photo to the landlord, for the

purpose of determining whether the person depicted in the photo

was the victim's roommate, regardless of the name by which the

landlord knew him. They also showed the photo to the victim, to

determine if that was his roommate, the person whom the victim had

already said was the assailant. Both men confirmed that the man

in the photo was the roommate. Under those circumstances, and for

that limited purpose, showing the witnesses only one photograph

was not improperly suggestive.

"[T]o obtain a pretrial hearing, a defendant has the initial

burden of showing some evidence of suggestiveness that could lead

to a mistaken identification." State v. Henderson, 208 N.J. 208,

6 A-2654-15T3
288 (2011) (emphasis added). That is not the case here. Showing

the witnesses defendant's photo alone, instead of as part of a

photo array, was not likely to lead to a mistaken identification.

Further, the State established that the identifications were

highly reliable. Id. at 289.

We agree with the trial judge that a testimonial Wade hearing

was not required, but even if it was error not to hold a hearing,

on this record the error was harmless. See R. 2:10-2. In the

context of this case, the defense could not demonstrate "a very

substantial likelihood of irreparable misidentification" so as to

justify suppression of the identification evidence. Henderson,

208 N.J. at 289. In fact, there was no evidence of

misidentification, i.e., no evidence that the person in the

photograph was not the victim's roommate. Defendant's arguments

on this point are without sufficient merit to warrant further

discussion. R. 2:11-3(e)(2).

IV

Next, defendant contends that the trial court erred in

excluding from evidence a medical record purporting to show that

the victim had a blood alcohol content (BAC) of about .16 when he

was admitted to the hospital. Defendant contends that the blood

test results would have contradicted the victim's testimony that

he had not been drinking on the night he was stabbed and would

7 A-2654-15T3
have cast doubt on his ability to perceive the events of that

evening.

The issue arose in this context. The State called Dr. Knight

as a fact and expert witness, to testify about the treatment he

provided after the victim was brought to the emergency room. Dr.

Knight's direct testimony was limited to describing the victim's

stab wound, the danger it presented to his life if not treated,

and the surgery Dr. Knight performed. According to Dr. Knight,

as soon as he saw that the victim had a deep stab wound right

under the rib cage, with body fat hanging out of it, he ordered

the victim into surgery. He began operating about half an hour

after the victim arrived at the ER.

On cross-examination, defense counsel asked Dr. Knight if it

was important to know what substances a patient had in his system

when brought to the emergency room. Dr. Knight responded that it

was not a factor if there was a need for emergency surgery. In

response to defense counsel's question, he confirmed that a blood

test was done the night the victim was admitted to the hospital.

However, in response to counsel's question about the victim's BAC,

Dr. Knight stated that he had no recollection what the victim's

BAC was. At that point, the prosecutor objected to further

questioning about the blood test, absent a proper foundation.

8 A-2654-15T3
 The judge permitted defense counsel to ask additional

foundational questions. However, she ultimately declined to admit

the blood test in evidence. The judge reasoned that the document

had not been properly authenticated as a business record, there

was no testimony from the person who took the blood sample, and

Dr. Knight did not consider or use the document as part of his

treatment or diagnosis of the patient. The judge reasoned that

"it wasn't part of his diagnosis, it wasn't part of the treatment.

[The test results] didn't even matter to him." In a later

supplemental ruling, the judge also concluded that there was an

insufficient foundation from which she could conclude that the

substantive content of the document was trustworthy.

We review the judge's evidentiary ruling for abuse of

discretion. State v. Kuropchak, 221 N.J. 368, 385 (2015). We

find no abuse of discretion in the judge's decision that the

document was not properly authenticated and was otherwise

inadmissible without a further foundation. We agree with the

judge's thorough statement of reasons placed on the record in

denying the defense motion for a new trial on this issue.3

3
The State accurately notes that the blood test report in
defendant's appendix actually lists the names of two different
patients on the same pages – the victim and a person named
"Quigley." In fact, Quigley's name, age and date of birth appear
on the first page under "Physician Documentation." This raises a

9 A-2654-15T3
 Defendant now argues that he should have been allowed to

"refresh" Dr. Knight's recollection by showing him the blood test

report. See N.J.R.E. 612. However, N.J.R.E. 612 is not a vehicle

for placing before the jury information that would otherwise be

inadmissible. See State v. Caraballo, 330 N.J. Super. 545, 557

(App. Div. 2000). Dr. Knight did not authenticate the blood test

as a business record. He did not know whether the blood was drawn

in the ambulance or at the hospital. He testified that he did not

rely on the blood test result and it was irrelevant to his

treatment or diagnosis of the victim. Under those circumstances,

an attempt to have the witness read from the report, in order to

get the information before the jury for its truth, was improper.

Finally, even if the court erred in excluding the document,

the error was harmless, if the report was offered to show that the

victim was not truthful when he stated he had not been drinking.

By itself, that would not have changed the outcome of the trial

and thus its exclusion had no clear capacity to produce an unjust

result. See R. 2:10-2. As the trial judge noted, if the true

purpose of placing the record before the jury was to create an

inference that the victim was too intoxicated to identify an

significant issue as to the authenticity, accuracy, and
reliability of the document as a purported report of the victim's
blood test.

10 A-2654-15T3
assailant, the defense would have needed an expert to testify

about the medical significance of a .16 BAC. Otherwise, the jury

would be left to speculate about its significance.

V

Defendant next argues that the trial court erred in failing

to give certain portions of the model charge concerning

identification. Model Jury Charges (Criminal), "Identification:

In-Court and Out-of-Court Identifications" (rev. June 4, 2007).

The judge read the jury ten pages of instructions about

identification, and the pertinent factors to be considered. We

conclude that the instructions she provided were sufficient in the

context of this case. We agree with the judge that it was not

necessary to instruct the jury about system variables, including

the absence of a photo array and the normally-required procedural

safeguards attendant on the identification process.

Nonetheless, even if it was error to omit the additional

instructions defendant claims the court should have given, the

error was harmless beyond a reasonable doubt. The police asked

the witnesses whether the person in the photo was the victim's

roommate, a person with whom the witnesses were familiar but whose

true name they might not know. The likelihood that the witnesses

would mis-identify the person in the photo as being the roommate,

when he was not, was minimal.

11 A-2654-15T3
 More importantly, this case was not about observational mis-

identification. There was never an issue about whether the victim

could have been mistaken about whether his roommate stabbed him,

or whether someone other than his roommate stabbed him. The

stabbing took place in a lighted room, and was committed by a

person who was standing right in front of the victim and was

speaking to him. Moreover, the roommate was someone the victim

had known for months and with whom he had shared a bedroom for

months.

The defense theory was that, for some unexplained reason, the

victim intentionally accused the wrong person, or the landlord

misunderstood the victim's initial statement about who stabbed him

and the police then focused on the wrong suspect. At no time did

the defense argue that the victim mistakenly perceived or

mistakenly remembered that defendant stabbed him when in fact

someone else was the assailant. And the record would not support

such an inference.

VI

Finally, we address defendant's sentencing arguments. After

determining and weighing the mitigating and aggravating factors,

the trial court sentenced defendant to fifteen years in prison,

subject to NERA, for first-degree attempted murder, and merged the

other two offenses into the attempted murder conviction. We owe

12 A-2654-15T3
deference to the trial court's sentencing decision, and we will

not substitute our judgment for that of the sentencing court.

State v. Lawless, 214 N.J. 594, 606 (2013).

Defendant argues that in finding aggravating factors one and

two, the trial court double counted elements of the attempted

murder offense. See State v. Fuentes, 217 N.J. 57, 74-75 (2014)

(facts establishing elements of a crime should not also be

considered as aggravating factors in sentencing).

Factor one directs the court to consider the nature and

circumstances of the offense and whether it was committed in an

especially heinous, cruel or depraved manner. N.J.S.A. 2C:44-

1(a)(1). The judge considered that the victim had taken defendant

in and given him food and shelter when he was destitute, and in

return, defendant stabbed the victim when he would not give

defendant money. The judge also found that the crime was committed

in a depraved manner because it demonstrated an intent to inflict

pain and suffering in addition to death. The judge also found

that defendant stabbed the victim in the abdomen and "left him to

die" and the victim "would have died" but for emergency surgery.

Defendant argues that the judge double counted the element

of attempted murder, that defendant "does or omits to do anything

with the purpose of" causing the victim's death. See N.J.S.A.

2C:5-1(a)(2). We disagree. Viewed in context, we do not find

13 A-2654-15T3
that the judge's comments about leaving the victim to die

constitute double counting of an element of attempted murder. It

was part of the judge's overall description of defendant's

particularly heinous and cruel course of conduct in inflicting

maximum pain and suffering on the victim, and his cold-hearted

treatment of a victim who had tried to help him. See Fuentes, 217

N.J. at 75; State v. Soto, 340 N.J. Super. 47, 54-55 (App. Div.

2001).

Factor two includes the gravity and seriousness of the harm

inflicted on the victim. N.J.S.A. 2C:44-1(a)(2). In finding that

factor, the trial court considered the nature of the victim's

injuries "that required emergency lifesaving efforts and surgery."

The judge considered that the victim was "stabbed in the abdomen"

and the wound affected a number of "major organs." Those findings

were consistent with Dr. Knight's testimony about the way the

victim was stabbed, below the rib cage with an upward trajectory

that affected the diaphragm, stomach, and lungs. Defendant argues

that these findings constituted double counting of the element of

acting with the purpose to cause the victim's death, and doing or

omitting to do anything to cause the death. Again, we disagree.

Aggravating factor two "compels 'a pragmatic assessment of

the totality of harm inflicted by the offender on the victim.'"

Lawless, 214 N.J. at 611 (quoting State v. Kromphold, 162 N.J.

14 A-2654-15T3
345, 358 (2000)). Under this rationale, "defendants who purposely

or recklessly inflict substantial harm receive more severe

sentences than other defendants." Kromphold, 162 N.J. at 358.

We have recognized that "[t]he extent of the injuries, which

exceed the statutory minimum for the offense, may be considered

as aggravating" for purposes of sentencing. State v. Mara, 253

N.J. Super. 204, 214 (App. Div. 1992). Moreover, "a conviction

for attempted murder does not require as one of its elements that

any injury be inflicted." See State v. Noble, 398 N.J. Super.

574, 599 (App. Div. 2008). Thus, a defendant who succeeds in

almost killing a victim, by inflicting extensive injury, may be

punished more harshly than a defendant who attempts to kill the

victim but does not succeed in inflicting a serious wound. On

this record, the trial court did not double count in finding

aggravating factor two.

Affirmed.

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