STATE OF NEW JERSEY VS. OSVALDO RIVERA, JR. (13-09-2652, CAMDEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3317-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OSVALDO RIVERA, JR.,
Defendant-Appellant.
__________________________
Submitted September 20, 2017 – Decided September 29, 2017
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
13-09-2652.
Joseph E. Krakora, Public Defender, attorney
for appellant (Peter T. Blum, Assistant Deputy
Public Defender, of counsel and on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Sara M. Quigley,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
A jury convicted defendant Osvaldo Rivera of eleven counts
including first-degree murder, N.J.S.A. 2C:11-3, and first-degree
attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1(a), in the sexual
assault and stabbing of defendant's neighbor, a twelve-year-old
girl, and the stabbing death of her six-year-old brother, who
tried to rescue his sister. Defendant raised the partial defense
of intoxication. We affirm.
We need not recite the details of the vicious assaults, which
occurred in the victims' home when defendant entered
surreptitiously at night and assaulted the two children, cutting
both of them in the neck and other places with a knife after
sexually assaulting the girl numerous times. Multiple DNA samples
linked defendant to the crimes. The victim who survived also
recognized defendant and identified him in court at trial. The
judge imposed sentences requiring an aggregate mandatory minimum
term of eighty-two and one-half years.
Acknowledging the crimes were "horrific," defendant raises
only the following issue on appeal:
POINT I: A NEW TRIAL SHOULD OCCUR BECAUSE THE
COURT IMPROPERLY INVITED THE JURORS TO
CONSIDER POTENTIAL PUNISHMENT BY INFORMING
THEM OF THE DEGREES OF THE OFFENSES AND
INFORMING THEM THAT THE [SIC] SOME CHARGES
WERE "LESSER" OFFENSE. U.S. CONST. AMEND.
XIV; N.J. CONST. ART. I, PARA. 1.
On the last occasion when counsel discussed the jury charge
with the judge, defense counsel asked that the degrees of the
crime be provided to the jury. The judge complied with the defense
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request to include the degrees of the crimes although initially
the State held a contrary view. Thus, any defense objection to
the inclusion of degrees constitutes invited error. "A [party]
cannot request the trial court to take a course of action, and
upon adoption by the court take his chance on the outcome of the
trial, and, if unfavorable, then condemn the very procedure which
he urged, claiming it to be error and prejudicial." State v.
Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966). Like judicial
estoppel, the doctrine of invited error "is designed to prevent
[a party] from manipulating the system." State v. Jenkins, 178
N.J. 347, 359 (2004).
Defense counsel did request the trial judge to leave out the
word "lesser" when explaining the possible charges to the jury.
When denying the defense request, the judge noted that "lesser-
included" is used in the model jury charges.
Defense counsel then argued to the jury in summation that
defendant should be convicted of the charge of aggravated
manslaughter rather than murder because, based on defendant's
intoxication at the time of the crimes, he had not acted
purposefully or knowingly. See State v. Cameron, 104 N.J. 42, 54-
56 (1986) (holding that voluntary intoxication only operates as a
defense to a purposeful or knowing offense where the intoxication
is of such "an extremely high level" that it causes a "prostration
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of faculties" making the requisite mental state for the offense
"totally lacking") (internal citations omitted). She also argued
that he should be convicted only of the crime of sexual assault
rather than aggravated sexual assault based on the forensic
evidence.
On appeal defendant argues that the jury should not be
informed of which charges were more serious because the jury should
not be involved in the penalty phase of the trial. See State v
Short, 131 N.J. 47, 59-60 (stating that jurors should not be
informed of potential sentences.) He argues that the jury might
have been so inflamed by the nature of the criminal behavior that
it neglected its duty to follow the instructions and chose to
convict defendant of the more serious charges for that reason
only. Defendant did not support his argument regarding the use
of the word "lesser" in the jury charge with any case law directly
on point from any jurisdiction. The wording is contained in the
model jury charges. Model Jury Charge (Criminal), "Lesser[-]
Included Offenses" (2002). The issue raised by defendant is
without sufficient merit to require further discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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