State v. Pulcine

1

STATE OF NEW JERSEY, Plaintiff-Respondent, v. LARRY PULCINE, Defendant-Appellant.

No. A-0362-19

Superior Court of New Jersey, Appellate Division

March 2, 2023

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.

Argued January 25, 2022

On appeal from the Superior Court of New Jersey, Law Division Cumberland County, Indictment No. 17-05-0447.

Stephen W. Kirsch, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney Stephen W. Kirsch, on the brief).

Andre R. Araujo, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae,

Cumberland County Prosecutor, attorney; Andre R. Araujo, of counsel and on the brief).

Before Judges Currier, DeAlmeida and Smith.

DeALMEIDA, J.A.D.

Defendant Larry Pulcine appeals his convictions after a jury trial of first-degree murder and related charges, as well as his resulting aggregate fifty-year sentence. We affirm defendant's convictions and sentence with one exception: because the trial court ordered restitution without holding an ability-to-pay hearing, we vacate that aspect of defendant's sentence and remand for further proceedings with respect only to restitution.

I.

On October 10, 2016, defendant, his brother Charles Pulcine, Richard Sperrazza, and Ivan Scott Strayer were staying at a Vineland hotel. The four were employed by an electric utility company and were in New Jersey on an assignment. Defendant and his brother were sharing Room 405. Sperrazza and Strayer were staying together across the hall in Room 404. Their foreman, Mark Knowles, was staying alone in a room near the rest of the crew.

The crew finished their work for the day and returned to the hotel in the early evening. Sperrazza and Strayer went to a nearby restaurant to eat, drink, and watch television. Defendant and Charles left the hotel to purchase fast-food they intended to eat in their room.^[1]

At about 8:00 p.m., Strayer returned to the hotel and went to his room. Shortly before 10:00 p.m., defendant and Charles also returned to the hotel. They went to the front desk and obtained two room keys. They expressed uncertainty as to whether they were staying in Room 405 or Room 404 and obtained one key for each room. The two then went to Room 405 to eat dinner.

Sperrazza returned to the hotel shortly thereafter. According to Sperrazza, when he entered Room 404, Strayer was in bed sleeping and the television was on. Charles invited Sperrazza to Room 405 to eat and drink beer. Sperrazza accepted the invitation, leaving his room about ten minutes later. He later returned to Room 404 to retrieve more beer. Sperrazza testified that when he entered the room at that time, Strayer was in bed and the television was off. At some point while Sperrazza was in Room 405, defendant left the room for a period of time, ostensibly to put quarters in the dryer in the hotel's laundry room.

When Sperrazza decided to call it a night, he returned to Room 404. He testified that when he entered the room it was dark and the television was off.

He used the light from his cellphone to guide him to his bed. Sperrazza got into bed and fell asleep without turning on the lights.

The next morning, Sperrazza woke up at about 5:00 a.m. When he turned on the lights, he saw that Strayer was lying in his bed lifeless and bloody. Finding no signs of life, Sperrazza ran out of the room only in his underwear and with no key, the door slamming behind him. Sperrazza rushed to Knowles's room and told him what he saw. Because Sperrazza had locked himself out of the room, Knowles went to the front desk to obtain a key to Room 404. Police were notified.

At about this time, defendant and Charles were returning to their room from getting coffee. Sperrazza, who was in the hallway outside his room upset and crying, told them what he saw, describing Strayer as being "fucked up." Sperrazza's description of Strayer's condition led Charles to believe Strayer had gotten drunk and did not want to go to work. Charles instructed Sperrazza to tell Strayer to stop fooling around, get up, and get ready to leave for work. Defendant told Sperrazza to "go back to bed; you're fucking drunk." Charles returned to Room 405. Defendant left the hotel.

Police arrived at Room 404 shortly thereafter. In the room, they recovered projectiles and shell casings from a .40-caliber handgun near the lifeless Strayer.

An autopsy later revealed that Strayer had been killed by four shots from a .40-caliber handgun registered to defendant. In defendant's room, police found both .380- and .40-caliber handgun ammunition.

After about six hours, defendant returned to the hotel, wearing a different shirt from the one he had on when he left. Officers arrested defendant and took him to the police station for questioning. During the interrogation that followed, defendant explained his disappearance by claiming that after Sperrazza told him and Charles that Strayer was "fucked up," defendant assumed Strayer had been assaulted by a stranger. At that moment, defendant heard a click that sounded to him like an exit door to the hotel closing. Believing the person who assaulted Strayer was escaping, defendant dashed down the stairs at the opposite end of the hotel and exited to the parking lot, hoping to apprehend the assailant. Although he passed a police officer entering the hotel as he exited, defendant did not stop or alert the officer that he believed he was in pursuit of the person who assaulted Strayer.

Instead, defendant claims, he searched the parking lot for the assailant. Having not found anyone suspicious, he noticed a figure crouching down in brush, or near a retention pond, in a field adjacent to the hotel. According to defendant, he entered the field and encountered the assailant, who struck him, possibly with a stick, knocking defendant to the ground and escaping. Defendant then chased the assailant deep into a wooded area, where he became disoriented, lost track of the assailant, and could no longer see the hotel. According to defendant, he spent the next approximately five or more hours wandering, and sometimes crawling, through tall brush, sand, woods, and water, unable to find his way back to the hotel. Defendant claimed that the shirt he was wearing when he left the hotel got caught in briars and rather than attempt to free himself from the brush, he took off the shirt and left it there. Ultimately, defendant appeared at a butcher shop several miles, and across a four-lane State highway, from the hotel. Defendant could not recall how he crossed the highway.

At the butcher shop, defendant asked to use a telephone. Although he initially said that he attempted to call his girlfriend but only reached her voicemail, he later admitted that he spoke with her and asked if she had heard from Charles. Police later observed a text on Charles's cellphone from defendant's girlfriend saying that defendant was at Joe's Butcher Shop and Charles should "hurry" there. Defendant could not identify the owner of a telephone number he wrote on a receipt while at the butcher shop. Defendant did not call the police from the butcher shop to report his pursuit of the assailant he believed he saw in the field. He instead walked a few miles back to the hotel and, once there, entered his room to sleep.

During the interrogation, defendant admitted he owned a .380-caliber handgun, but initially denied remembering whether he brought it with him to New Jersey. Ultimately, he admitted that he did have that handgun with him and that he brought it into the field when he chased the assailant. He speculated that he may have dropped the handgun during his struggle with the assailant or that it fell from the pocket of his shirt. At that time, defendant did not admit owning a .40-caliber handgun or having brought it with him to New Jersey.

Later, in the woods behind the hotel, police recovered the red flannel shirt that defendant was wearing that morning, as well as a room key. In addition, the officers recovered two handguns, defendant's .380-caliber handgun and the murder weapon, defendant's .40-caliber handgun, as well as a gun holster. Both guns had their ammunition magazines removed and had live rounds in their chambers.

Surveillance video showed defendant leaving the hotel in a red flannel shirt on the morning Strayer was found dead. There is no video of a person leaving the hotel just before defendant left the building.

A grand jury indicted defendant, charging him with: (1) first-degree knowing and purposeful murder, N.J.S.A. 2C:11-3(a)(1), (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and two counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).

Before trial, defendant moved to suppress the statement he made during his interrogation at the police station. He relied on two arguments: (1) he did not knowingly, intelligently, and voluntarily waive his Miranda^[2] rights; and (2) he invoked his right to terminate the interrogation several times, but detectives either ignored his unequivocal invocations, or, if the invocations are considered to be equivocal, failed to inquire whether he was making an invocation.

After holding an evidentiary hearing and reviewing a video recording of the interrogation, the trial court issued a written opinion rejecting defendant's claim that he did not make a knowing, intelligent, and voluntary waiver of his Miranda rights. The court found that a detective read defendant each of his Miranda rights from a standard form and asked him to initial the form if he...