                        NOT FOR PUBLICATION WITHOUT THE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-4079-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

PEDRO A. GARCIA,

     Defendant-Appellant.
_____________________________

              Submitted December 20, 2017 – Decided July 11, 2018

              Before Judges Nugent and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Indictment No.
              11-11-1892.

              Joseph E. Krakora, Public Defender, attorney for
              appellant (Michele A. Adubato, Designated Counsel, on
              the brief).

              Christopher S. Porrino, Attorney General, attorney for
              respondent (Arielle E. Katz, Deputy Attorney General,
              of counsel and on the brief).

PER CURIAM

        Defendant, Pedro A. Garcia, confessed to police that he and

a co-defendant, Wilfredo Sanchez, stabbed to death, decapitated,

dismembered, and dispersed the body parts of the gay man with whom
they lived.     For those offenses, a jury convicted defendant of

murder, desecrating human remains, and other crimes, and a judge

sentenced him to an aggregate sixty-year prison term with forty-

two and one-half years parole ineligibility.1

       Defendant     appeals.      He    argues    he     did   not    voluntarily,

knowingly, and intelligently waive his Miranda2 rights before

confessing to police, and thus the trial court erred by denying

his    suppression    motion.       He   also     argues    that      separately    or

cumulatively, the improper and prejudicial testimony of three

witnesses, the admission of gruesome photographs, the prosecutor's

misconduct, and the trial court's refusal to charge the jury on

manslaughter, deprived him of a fair trial.                 Last, he argues his

sentence is excessive.

       We reject defendant's arguments.              The motion record amply

supports the trial court's finding that defendant voluntarily,

knowingly,    and     intelligently      waived     his    Miranda      rights     and

confessed his crimes.           With the exception of his request for a

jury    instruction     on      manslaughter,      defendant       preserved       for


1
   In a separate trial, a jury convicted co-defendant Sanchez on
all counts and a judge sentenced him to an aggregate term of life
imprisonment plus fifteen years.    His conviction was affirmed.
State v. Sanchez, No. A-5951-13 (App. Div. Aug. 19, 2016), certif.
denied, 230 N.J. 602 (2017).
2
    Miranda v. Arizona, 384 U.S. 436, (1966).


                                         2                                   A-4079-15T4
appellate review none of the alleged trial errors he now complains

of, and none were clearly capable of producing an unjust result.

And   defendant's   sentence    is   neither   illegal   nor    conscience

shocking.   For these reasons, we affirm defendant's convictions

and sentence.

                                     I.

                                     A.

      A Bergen County Grand Jury charged co-defendants in a multi-

count indictment with first-degree murder, N.J.S.A. 2C:2-6 and

N.J.S.A. 2C:11-3(a)(1) & (2); second-degree desecration of human

remains, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:22-1(a); second-degree

disturbing or concealing human remains, N.J.S.A. 2C:2-6 and 2C:22-

1(a); two counts of third-degree possession of a knife for an

unlawful purpose, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(d); two

counts of fourth-degree unlawful possession of a knife, N.J.S.A.

2C:39-5(d); and two counts of third-degree hindering apprehension,

N.J.S.A.    2C:29-3b(1)   and    N.J.S.A.      2C:29-3(b)(4).     (Da1-4).

Following the indictment, defendant filed a motion to suppress

statements he made to police.        The court denied the motion.         At

trial, the jury found defendant guilty on all counts.

      The trial court sentenced defendant as follows:          For murder,

to a fifty-year prison term subject to the No Early Release Act,

N.J.S.A. 2C:43-7.2; for desecrating the victim's body, to a ten-

                                     3                             A-4079-15T4
year   prison   term   consecutive    to   the     murder   count;   and   for

disturbing or concealing human remains, to a ten-year prison term

concurrent to the other counts.            The court merged the weapons

offenses.    On the two hindering apprehension counts, the court

sentenced defendant on each to a five-year prison term concurrent

to all other counts.      Defendant appeals.

                                     B.

       The State presented the following proofs at trial.                   The

victim, a single gay man, lived in a three-room studio apartment,

one of three in a building on Palisade Avenue in Cliffside Park.

During December 2010 and January 2011, defendant also resided in

the apartment.      In the latter part of December 2010, while the

victim spent time in El Salvador, defendant invited co-defendant,

Wilfredo Sanchez, to move into the apartment, which Sanchez did.

Defendant and Sanchez were still living there when the victim

returned near the month's end.

       According to the victim's sister, the victim and defendant

enjoyed a sexual relationship, but defendant would often deny it.

The sister once observed defendant become angry because the victim

had told defendant's ex-wife defendant was gay.             When asked by the

prosecutor   what   the   victim   said    about    the   relationship     with

defendant, the sister testified — without objection from defendant



                                     4                                A-4079-15T4
— "when my brother would give him money, everything was fine.                But

when my brother wouldn't give him anything he would abuse."

     Similarly,       another     tenant   in     the    three-unit   building

testified the victim said he loved defendant a lot, but defendant

did not love him.      The other tenant once found the victim crying,

and the victim said defendant had hit him.              According to the other

tenant, "[the victim] said that [defendant] had told him that he

was going to kill him.          [The victim] took it . . . as if it were

a joke."      A third tenant testified the victim always said he was

deeply   in    love   with   defendant,     but    defendant    would    become

embarrassed when the victim referred to defendant as a boyfriend.

The third tenant once observed defendant slap the victim.

     During the second Sunday, Monday, and Tuesday of January

2011, police investigated the victim's disappearance and homicide.

They became involved when the victim's sister reported him missing.

When he did not answer her daily call on Sunday, and she later

learned he missed work — which he had never done — she went to his

apartment where she confronted Sanchez, his brother, and a friend.

Sanchez phoned defendant, who came to the apartment a short time

later.     Disbelieving defendant when he denied knowing where the

victim was, the victim's sister said she had installed cameras in

the apartment during her brother's trip to El Salvador.               When she

made this statement, she observed defendant become nervous.

                                       5                                A-4079-15T4
      The victim's brother arrived and called police.                   Patrol

officers arrived shortly after 6:30 p.m., but they did not speak

Spanish and the apartment's occupants did, so defendant and the

victim's siblings went to Cliffside Park Police Station where they

were interviewed by an officer who spoke Spanish.                 His name was

Jesus Garcia.     The victim's sister told Officer Garcia she was

very concerned about her brother and the last person to see him

was defendant.    She insisted defendant knew what happened to her

brother.   Defendant denied this.

      Defendant told Officer Garcia he had come home from work the

previous evening, Saturday, and was very tired.            There was a party

going on in the apartment, but he went to sleep. Later, the victim

left with unknown persons.        According to defendant, the victim

frequented gay clubs in New York City and that is probably where

he had gone.     Officer Garcia helped the victim's siblings file a

missing person report.

      While Officer Garcia was assisting the victim's siblings, the

victim's upstairs neighbor telephoned and said she had seen what

appeared to be blood stains on the walls, in the kitchen, and in

the   bathroom   of   the   victim's       apartment.   Officer    Garcia   was

dispatched to the apartment, which was only a minute or two from

the police department.



                                       6                               A-4079-15T4
     Sanchez,    his   brother,   and   his   friend   were   still    there.

Sanchez told Officer Garcia he and his brother had attended the

party the previous night but left at 12:30 a.m.                The officer

observed blood in three places: the wall beneath a mirror in the

living room, on a kitchen cabinet, and in the bathroom.

     The victim's sister and defendant returned at approximately

9:45 p.m.    The officer overheard the victim's sister and defendant

arguing.     She insisted a set of bed sheets was missing.            He said

they had been thrown out due to a bug problem.                She insisted

defendant permit her to look through the victim's knife drawer and

that the police also look through it.         According to the officer,

"[t]here was no answer from [defendant] at that time about the

knives."     Defendant did not object to this testimony.

     Officer Garcia asked defendant if he knew where the blood

came from.    Defendant said he was asleep the night before and did

not know who was at the party, but around ten o'clock somebody

knocked on the apartment door.      When the victim answered the door,

the person punched him in the face.       The victim shut the door and

continued to party.     Defendant could not identify the assailant.

     A short time later, Cliffside Park Detective Sergeant John

MacKay arrived.     Defendant and the victim's sister continued to

argue about the bed sheets.       Officer Garcia testified the sister

continued to insist she be allowed to look in the knife drawer.

                                    7                                 A-4079-15T4
Officer Garcia also heard defendant tell the victim's sister,

"[y]our brother had too much trust in Wilfredo."               According to

Officer Garcia, defendant spoke in the past tense then corrected

himself and spoke in the present tense.

     Officer Garcia and Detective MacKay asked everyone except

defendant to leave the apartment.           Detective MacKay interviewed

defendant and Officer Garcia translated.              Defendant again denied

he was gay and then repeated to Detective MacKay what he had told

Officer Garcia about the party the previous night and the victim

leaving at approximately 2:00 a.m.

     The    next   day,   Monday,    the   investigation    evolved    into    a

homicide     investigation.         That   morning,     detectives    observed

evidence of blood in the parking lot behind the victim's apartment

building.     They summoned a K-9 officer with a cadaver dog named

Harley.      Harley gave a "positive indication" by licking and

scratching at the blood spot.          The dog was trained to "indicate"

on human remains only.      During the day, the K-9 officer and Harley

conducted a "spiral search" from the parking lot.               Harley gave

positive indications at three locations not far from the victim's

apartment.     The dog first located a large black garbage bag in a

"Christmas wrapped box" behind a church and three more black

garbage bags at a construction site.           Harley exhibited behavior

at a third site that indicated he smelled human remains, but he

                                       8                               A-4079-15T4
did not give a positive indication, that is, lick or scratch any

container.

       The garbage bag found at the church and two of the garbage

bags found at the construction site contained human remains.               One

contained a severed head.        Another contained a torso.         The third

contained a right lower human leg with a blue sock on it.                  The

bags   also   contained    two   knives,   a   knife   sharpener,    assorted

clothing, latex gloves, cigarette butts, a shower curtain, a bath

rug, toilet bowl cleaner, a brush, a holder, air freshener, and

other items.       Many of the items were bloodstained.       The victim's

sister and brother identified the severed head found inside one

of the garbage bags as that of the victim.              The victim's arms,

left leg, and penis were not recovered.             During the trial, the

prosecution introduced without objection various photographs of

the garbage bags' contents.

       Following    the   gruesome   discoveries,      homicide   detectives

searched the victim's apartment and an apartment where Sanchez had

gone to live; the victim's after obtaining a warrant, Sanchez's

after obtaining his consent.          The detectives seized from the

victim's apartment, among other evidence they circumstantially

linked to items in the garbage bags, a broken piece of a dinner

plate. The plate's pattern matched precisely the pattern on dinner

plates, one whole and one broken, contained in the garbage bags.

                                      9                               A-4079-15T4
     Similarly,   detectives         seized   from    Sanchez's   apartment

clothing detectives circumstantially matched to clothing removed

from the garbage bags.      For example, they recovered socks with the

same American flag logo as those found in the garbage bags.                They

also found shirts with sleeves cut off and blue jeans speckled

with paint.    A shirt with sleeves cut off and a paint-speckled

pair of pants were also found in one of the garbage bags.

     Detectives also obtained video surveillance footage from

cameras near the victim's apartment, near the church, and near the

construction site.    Surveillance footage captured groups of people

crossing a street from the vicinity of the victim's apartment

between 1:00 and 1:15 on Sunday morning. According to a detective,

they were the people who had attended the party.

     Between   4:00   and     5:00     a.m.   the    same   morning,     video

surveillance captured a person detectives believed to be Sanchez.

The man had his hands up around his shoulders as he stepped into

the parking-lot area and walked toward the back of the church

where Harley found the first bag.          Another camera captured the man

returning from the area of the church, his hands at his side.               The

person turned into the driveway of the victim's apartment.

     Later Sunday morning, at approximately 8:03 a.m., a video

camera on a commercial building across the street from the victim's

apartment captured defendant carrying two bags.             Defendant placed

                                      10                               A-4079-15T4
one   on   the   ground,   left    the    view   of   the   camera,   returned

approximately eight minutes later, picked up the second bag, and

walked past the camera out of its view.

      Detectives also obtained video surveillance from the vicinity

where Harley had engaged in behavior indicating he had detected a

scent of human remains.       The surveillance film captured a male,

who could not be identified, entering and leaving the area.

Detectives learned that residential garbage was collected from

this site by public-works trucks on Monday morning, before Harley

discovered the victim's remains.

      The police picked up Sanchez and arrested him.             On Tuesday,

the day after the body parts were found, detectives                   located

defendant and transported him to the Bergen County Prosecutor's

Office. After providing defendant with food and a bottle of water,

and after defendant used a bathroom, detectives informed him of

his Miranda rights, which he waived.             The detectives videotaped

an interview with him.            Detective James Brazofsky began the

interview at approximately 3:00 p.m.         Defendant first repeated the

version of events he had given police the previous Sunday evening

concerning the victim leaving late Saturday night or early Sunday

morning.    Defendant then said that on Sunday morning he went to

work at a Greek restaurant in Glen Rock where he worked as a cook.

Detective Brazofsky testified:

                                     11                                A-4079-15T4
               I right off the bat knew he was not being
          truthful with us because I had been to the
          Greek [restaurant] the day before and spoken
          to his boss who informed me that he was fired
          two weeks earlier so I knew he was not being
          truthful when he told me he had gone to work
          Sunday. He did receive his pay from the week
          or the weeks that he worked prior to being
          fired but he was fired by that owner two weeks
          before this homicide took place.

      Defendant next told the police, contrary to what he had

previously     told   them,     that   he    and    co-defendant   cleaned     the

apartment in the middle of the night and made multiple trips to

the   street    to    deposit    garbage.          When   confronted   with    the

surveillance footage, defendant asked whether there were cameras

in the victim's apartment.             Eventually, after being confronted

with multiple inconsistencies, defendant said he would tell the

truth.

      Defendant confessed.        He said, "We did it.          It wasn't just

me.   It was [m]e and [Sanchez].              We did it.       We killed him."

Defendant admitted that after others left the party, he, Sanchez,

and the victim were lying on one bed in the apartment.                 The victim

touched Sanchez and began undoing Sanchez's belt.                  Sanchez woke

up, got angry, shoved the victim to the floor, and punched him at

least once.      During the scuffle, either Sanchez or the victim

broke a dinner plate.




                                        12                                A-4079-15T4
     Sanchez yelled he was not defendant, and the victim should

not touch him.        Defendant attempted to calm Sanchez down, but

Sanchez said, "we have to kill him.         We have to finish him."         In

response, defendant went to the kitchen, grabbed a knife, returned,

and stabbed the victim once in the neck, inflicting the wound the

medical examiner said was the cause of death.

     Defendant explained how he and Sanchez stabbed the victim and

put him in the bathtub.       They ignored the victim's pleas for his

life.     They disemboweled the victim and watched him die.            After

the victim died, defendant and Sanchez placed his body on a blanket

and carried the body to the apartment's parking lot. They intended

to dispose of the body, but it was too heavy to carry further, so

they took it back to the apartment and placed it in the bathtub,

where they dismembered it.

     Defendant admitted they put on gloves to protect their hands.

They attempted to hide evidence, including the gloves, pillows,

curtains, and a bathroom rug, by placing it in the same bags as

the body parts.       When they finished putting the victim's body

parts and the other items into garbage bags, they used a Clorox

bottle to clean the bathroom.

     Defendant admitted Sanchez disposed of one bag at a nearby

church,    and   he   and   Sanchez   disposed   of   other   bags   at   the

construction site.      Defendant also disposed of a garbage bag where

                                      13                             A-4079-15T4
Harley had detected the odor of blood or remains but found nothing.

Defendant did not dispose of the shoes he wore.                He was wearing

them at the time of the interview.           Detectives observed blood on

them.    Forensic experts matched the blood to that of the victim.

     The   State     produced   forensic     evidence    that    corroborated

defendant's confession.       DNA found on cigarette butts in the black

garbage bags matched defendant's DNA.           Forensic experts matched

DNA from a sock found in a garbage bag to Sanchez's DNA.                        In

addition, as previously explained, items in the black garbage bags

matched items seized in the search of the victim's and Sanchez's

apartments.

     The victim's upstairs tenant testified that after most people

left the party at the victim's apartment on Saturday night or

early Sunday morning, the victim, defendant, and Sanchez argued.

The tenant heard the victim scream repeatedly at defendant to

leave the apartment.        The tenant heard swearing and cursing.            The

music coming from the victim's apartment became louder.

     According to the tenant, the victim's voice suddenly became

muffled and there was much banging coming from the apartment, as

though   furniture    was    being   moved   around.     The    tenant     heard

mumbling, then heard the shower being turned on, after which the

tenant no longer heard the victim's voice.             The argument between



                                     14                                  A-4079-15T4
defendant and the victim, which had lasted approximately one hour,

ceased.    The tenant never saw the victim again.

     Defendant presented the testimony of one witness, a friend

he had known since childhood.    The friend testified defendant had

never been gay.    In fact, he was once married and had a child.

The friend visited defendant at the victim's apartment twice and

he and defendant got drunk. During the visits, he heard the victim

claim to be defendant's boyfriend.       The statement made defendant

angry.    The friend explained that defendant had been homeless and

at times lived with the victim. According to the childhood friend,

defendant had come to his home in the morning of the day he was

arrested.   The friend could not recall the exact time.     He thought

it was approximately 9:00 a.m.    Defendant was very drunk.

                                 II.

     Defendant appeals and raises the following arguments:

                               POINT I

            THE COURT'S FAILURE TO CHARGE THE LESSER-
            INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER
            AND   PASSION/PROVOCATION   MANSLAUGHTER  AT
            DEFENDANT'S REQUEST WAS REVERSIBLE ERROR.

                              POINT II

            THE ADMISSION OF HEARSAY STATEMENTS OF THE
            VICTIM RECOUNTING ABUSE BY DEFENDANT WAS AN
            ABUSE OF DISCRETION AND DEPRIVED DEFENDANT OF
            A FAIR TRIAL. (Not raised below).



                                 15                            A-4079-15T4
                  POINT III

IMPROPER REFERENCES TO DEFENDANT'S PRE-ARREST
SILENCE VIOLATED MR. GARCIA'S RIGHT AGAINST
SELF-INCRIMINATION. (Not raised below).

                  POINT IV

THE ADMISSION OF GRUESOME AND INFLAMMATORY
PHOTOGRAPHS DEPRIVED DEFENDANT OF A FAIR
TRIAL. (Not raised below).

                   POINT V

THE OVERZEALOUSNESS OF THE PROSECUTOR FROM HIS
OPENING STATEMENT TO HIS SUMMATION DENIED
DEFENDANT A FAIR TRIAL. (Not raised below).

                  POINT VI

THE DEFENDANT'S STATEMENT TO POLICE SHOULD NOT
HAVE BEEN ADMITTED INTO EVIDENCE BECAUSE IT
WAS NOT KNOWING AND VOLUNTARY.    (Not raised
below).

                  POINT VII

THE TESTIMONY OF DET. BRAZOFSKY EXPRESSING AN
OPINION THAT THE DEFENDANT WAS LYING WAS
IMPERMISSIBLE    OPINION   TESTIMONY    WHICH
REQUIRES REVERSAL OF DEFENDANT'S CONVICTION.
(Not raised below).

                 POINT VIII

THE AGGREGATE SENTENCE IMPOSED UPON THE
DEFENDANT OF SIXTY YEARS WITH FORTY TWO AND
ONE HALF YEARS OF PAROLE INELIGIBILITY WAS
EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED.
(Not raised below).

                  POINT IX

THE AGGREGATE OF ERRORS DENIED DEFENDANT A
FAIR TRIAL. (Not raised below).

                     16                          A-4079-15T4
     Defendant raises five of his first six arguments for the

first   time   on   appeal.      As   the   Supreme    Court   has    explained,

"[a]ppellate review is not limitless."                State v. Robinson, 200

N.J. 1, 19 (2009).      Rather, "the points of divergence developed

in proceedings before a trial court define the metes and bounds

of appellate review."         Ibid.   For that reason, the Supreme Court

has "insisted that, in opposing the admission of evidence, a

litigant must 'make known his position to the end that the trial

court may consciously rule upon it.'"             Ibid. (quoting State v.

Abbott, 36 N.J. 63, 76 (1961)).

     Indisputably,       "our     Rules      envision      the       making     of

contemporaneous objections as the principal and almost exclusive

means of preserving an issue for appeal."               Id. at 20 (citing R.

1:7-2).   There are exceptions.        For example, Rule 2:10-2 empowers

an "appellate court . . . , in the interests of justice, [to]

notice plain error not brought to the attention of the trial or

appellate court."      Under the plain-error standard, "an appellate

court can reverse only if it finds that the error was 'clearly

capable of producing an unjust result.'"              State v. Pressley, 232

N.J. 587, 593 (2018) (quoting R. 2:10-2; Stair v. Cole, 229 .S.

430, 458 (2017)).       The plain error standard, however, is "not

intended to supplant the obvious need to create a complete record

and to preserve issues for appeal.             To permit otherwise would

                                      17                                 A-4079-15T4
allow the . . . standard . . . to render as mere surplusage the

overarching requirement that matters be explored first and fully

before a trial court."            Robinson, 200 N.J. at 20.

       With    these    principles       in    mind,    we   turn   to    defendant's

arguments.

                                          III.

       We first address defendant's argument in Point VI that his

confession      should     have    been       suppressed     because     he     did   not

voluntarily,      knowingly,       and    intelligently        waive     his    Miranda3

rights    before        confessing       to    police      during   his        custodial

interrogation.         Defendant does not dispute that the detectives,

who spoke fluent Spanish, read him his Miranda rights, and he

signed a form waiving those rights.                 Indeed, he conceded at the

suppression hearing the detectives properly informed him of his

rights.       Rather, defendant asserts in conclusory fashion he "did

not fully understand everything."                As evidence of his alleged lack

of understanding, he points to his writing "Pedro" instead of

initialing the waiver of rights form.                    He also argues for the

first time on appeal that though authorities had not charged him

with   any     crimes    before     he   confessed,      his   statement        was   not




3
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                          18                                     A-4079-15T4
knowingly made because he was not informed that he would be charged

with murder.       Neither argument has merit.

     The State called three witnesses at the suppression hearing.

Defendant called none.           The State presented the testimony of

Cliffside    Park    Detective    Sergeant    MacKay     and    Special      Police

Officer   Jesus     Garcia.      Neither     testified    about      defendant's

confession    to    Bergen    County   Prosecutor's      detectives.           Both

testified about statements defendant made on Sunday when the case

was one involving a missing person.

     Detective Brazofsky, one of the Bergen County Prosecutor's

detectives   to     whom   defendant    confessed,     testified      about     the

circumstances       of   defendant's    confession.            The   State    also

introduced a DVD of the interview and a transcript – in English —

of the recording.

     Detective Brazofsky became involved in the investigation

after the victim's body parts were discovered.             During the course

of the investigation, co-defendant was interviewed and implicated

defendant as one of the killers.            On Tuesday, the day after the

victim's body parts were found, detectives picked up defendant at

approximately 1:40 p.m. and brought him to the Bergen County

Prosecutor's Office.         Defendant was escorted to a video-equipped

interview room and given food and a bottle of water.                   The video

equipment was activated.         Defendant used the bathroom before the

                                       19                                 A-4079-15T4
interview      began.      Detective      Brazofsky,        along    with    Detective

Michael      Guzman,    were   assigned    to    conduct      the    interview      with

defendant because defendant and both detectives spoke Spanish.

     The interview began at approximately 3:05 p.m.                          Detective

Brazofsky utilized the Spanish language version of the Bergen

County Prosecutor's Office Miranda rights form.                 After filling out

the date and time on the form, Detective Brazofsky explained to

defendant that he had certain rights, which the detective was

required to read before interviewing him.               He then asked defendant

if he could read Spanish and defendant replied "yes."                        Detective

Brazofsky then read the entire introduction followed by each of

the Miranda warnings.

     After the detective read each warning, defendant verbally

answered that he understood.             Detective Brazofsky then gave the

form to defendant, asked him to read it, and to print "yes" if he

understood each right.         The detective explained that if there was

anything defendant did not understand, the detective would explain

it further.      According to the detective, defendant read the form

and wrote "sí", Spanish for "yes," and his name, "Pedro," after

each right.

     Detective     Brazofsky      next    read    to   defendant       the    "waiver"

portion of the form.       Defendant said he understood.              The detective

asked   if    defendant    was   still     willing     to    speak    to    them,    and

                                         20                                    A-4079-15T4
defendant replied that he was ready.                    Defendant signed the form,

although he signed it on the witness line.

     Defendant      then     gave    a    lengthy       statement,    which     we   have

previously summarized.          The interview, which was approximately

three hours long, ended around 6:00 p.m.                    Defendant took several

cigarette breaks during the course of the interview.                          Following

the interview, the detective charged defendant with murder.

     According to Detective Brazofsky, defendant did not appear

to be under the influence of alcohol or drugs when he gave the

statement.     Defendant did appear to be hungry, which is why the

detective gave him something to eat before the interview began.

As defendant was reviewing the Miranda form, he asked Detective

Guzman   if   he    should    read       the    form    aloud.     Detective      Guzman

responded defendant could do whatever he liked or however he wished

to proceed.     Defendant did not read the form aloud.

     Following the hearing on defendant's motion to suppress his

confession, the trial judge issued a written opinion.                         Referring

to the testimony the State adduced at the hearing, the DVD of the

interview, the transcripts of the interview, and the exhibits

admitted      during    the     hearing,          the     court     found     defendant

voluntarily,       knowingly,       and    intelligently         waived   his   Miranda

rights and confessed.         The court explained:



                                           21                                    A-4079-15T4
     Here, the defense argues that the
defendant could not have made a knowing,
intelligent, and voluntary waiver of his
Miranda rights because he did not know how to
read Spanish and in turn, could not actually
comprehend the meaning behind each Miranda
right.   However, looking at the totality of
the circumstances, it is evident that the
defendant did in fact make a knowing,
intelligent, and voluntary waiver of his
Miranda rights. It was clear from the
investigation leading up to the interview that
the defendant's primary language was Spanish.
At the beginning of the interview with the
defendant, the Spanish-speaking detectives
asked the defendant on two separate occasions
whether he could read Spanish to ensure the
defendant's    understanding    of    Spanish.
Detective Brazofsky asked the defendant in
Spanish, "Okay, you read, do you read, uh, in
Spanish?" and received an answer of "yes" from
the defendant. A very short time later,
Detective Guzman asked the defendant in
Spanish, "Do you know how to read Spanish?"
in which the defendant responded with "yes."

     After this inquiry by the detectives, the
defendant was explicitly advised of each and
every Miranda right that was listed on the
Spanish Miranda form before any formal
questioning.     Detective Guzman read the
Miranda rights form out loud to the defendant
and then allowed the defendant to read the
form himself.    Once the defendant admitted
that he understood each of the rights, he
answered "sí" and signed his name next to each
right. Defendant read the form and asked the
detectives if he should write his full name
(Pedro Angel Garcia) on the form.

      Moreover, there is additional evidence
to show that there was no use of deception or
police coercion with the defendant.     Before
the interview started, the detectives informed
the defendant that they wanted to discuss the

                     22                          A-4079-15T4
          disappearance of the victim and the defendant
          was also provided with a sufficient amount of
          food and drink.      During questioning, the
          detectives granted the defendant cigarette
          breaks when requested and kept a passive, non-
          aggressive tone with the defendant.         It
          appears that the defendant stayed relatively
          calm answering the questions of the detectives
          and only became offended when he was asked
          whether or not he was gay and had a romantic
          relationship with [the victim]. Furthermore,
          the   defendant    was   not    agitated   and
          meticulously ate his pizza slices while
          cleaning his mouth and table of crumbs.

          [citations omitted].

     Our review of the factual findings of the trial court is

deferential.   State v. Scriven, 226 N.J. 20, 32 (2016).          That is

particularly so as "to those findings of the trial judge which are

substantially influenced by his opportunity to hear and see the

witnesses and to have the 'feel' of the case, which a reviewing

court cannot enjoy."    State v. Johnson, 42 N.J. 146, 161 (1964).

If our review satisfies us the trial court's findings could

reasonably have been reached on sufficient, credible evidence

present in the record, our task is complete and we should not

disturb the result.    Id. at 162.    Our review of the trial court's

legal conclusions is plenary.        State v. Rockford, 213 N.J. 424,

440 (2013).

     Defendant's   argument   that    he   "did   not   fully   understand

everything," as evidenced by his writing his name rather than his


                                 23                                A-4079-15T4
initials on the Miranda form, overlooks both the contrary testimony

the State developed, which is overwhelming, and the trial court's

factual    findings,      which    are    fully   supported      by    sufficient,

credible     evidence.            Such    evidence      included       defendant's

responsiveness      to     the     detectives'       questions,        defendant's

acknowledgement that he could read the Miranda form, and his

execution of the Miranda waiver form.                Defendant's argument is

meritless.

     Defendant's other argument – that he did not knowingly waive

his Miranda rights because detectives did not inform him he would

be arrested for murder – is also meritless.               In State v. A.G.D.,

the Supreme Court held a defendant's Miranda waiver was invalid

because    the   police    did    not    inform   him   before     beginning      his

interrogation that they had an outstanding criminal complaint and

warrant for his arrest.            178 N.J. 56, 68 (2003).             In State v.

Nyhammer, however, the Court explained that its holding in A.G.D.

was "not to be construed as altering existing case law . . . other

than imposing the basic requirement to inform an interrogatee that

a criminal complaint or arrest warrant has been filed or issued."

Nyhammer,    197   N.J.    383,    405   (2009)    (alteration        in   original)

(quoting A.G.D., 178 N.J. at 68-69).              Thus, even if defendant had

raised the issue before the trial court, it would have been to no

avail.    Moreover, under the totality of the circumstances, it can

                                         24                                  A-4079-15T4
hardly be said that not informing defendant he was a suspect in

the murder case or would be charged with murder would have rendered

invalid his otherwise voluntary, knowing, and intelligent Miranda

waiver.

                                 IV.

     We have considered defendant's arguments in Points II through

V and VII in light of the record and applicable legal principles

and concluded they are without sufficient merit to warrant extended

discussion.    R. 2:11-(e)(2).   We add only these brief comments.

Even if, as defendant contends in Point II, the trial court abused

its discretion by admitting the two hearsay statements given by

the victim's sister and a neighbor concerning defendant's previous

abuse of the victim, the fleeting references did not have the

capacity to produce an unjust result.   This is particularly so in

light of another neighboring apartment owner's testimony that she

witnessed defendant physically abuse the victim and in view of the

overwhelming quantitative and qualitative evidence of defendant's

guilt.    Indeed, as defendant concedes in his brief "[t]his was a

particularly strong case for the State."

     Defendant's argument in Point III concerning his pre-arrest

silence — on Sunday night, in the victim's apartment, in the face

of the sister's insistence to look through the knife drawer — is

based on a misinterpretation of the law.        In New Jersey, a

                                 25                         A-4079-15T4
prosecutor may not "use at trial a defendant's silence when that

silence arises 'at or near' the time of arrest, during official

interrogation, or while in police custody."            State v. Muhammad,

182 N.J. 551, 569 (2005) (citing State v. Deatore, 70 N.J. 100,

108-09 (1976)).      Here, defendant was silent not at or near the

time of his arrest, nor while in police custody, but rather two

days before his arrest, in the apartment where he lived, while the

police   were   in   the   preliminary   stages   of   a   missing    person

investigation. And the silence did not occur in the face of police

interrogation, but rather during an argument with the missing

person's sister.

     Contrary to defendant's argument in Point IV, the trial court

did not abuse its discretion by admitting the photographs of

defendant's crime, State v. Brown, 170 N.J. 138, 147 (2000),

particularly in the absence of an objection.           Moreover, we fail

to discern how the admission of photographic evidence was clearly

capable of producing an unjust trial result in view of the graphic

testimony of the medical examiner and law enforcement officers who

examined the victim's dismembered body parts — all of which was

necessary for the State to prove the elements of the crimes with

which defendant was charged.

     Nor was it error for Detective Brazofsky to testify how he

knew defendant was lying during the interrogation, as defendant

                                   26                                A-4079-15T4
argues in Point VII.      The detective was doing nothing more than

explaining how defendant's initial statements were contrary to

facts developed during the investigation.            In some instances, the

contrast was blatant.       In any event, the testimony was harmless.

The   State   presented   overwhelming,      independent        evidence   that

defendant lied to police, not only when he initially denied

culpability during the custodial interrogation, but also two days

earlier when he told police that during the Saturday night party

the victim had been punched and later left the apartment with

others, probably to go to a gay bar in New York.

      Last,   defendant's    claims     in   Point    V    of   prosecutorial

misconduct are unavailing.        Defendant takes exception to the

prosecutor presenting certain evidence: how the victim and his

siblings illegally entered the United States; defendant's pre-

arrest   silence;   gruesome    photographs;    and       hearsay   testimony.

Defendant also claims the prosecutor made an inflammatory and

unduly prejudicial closing argument.          We have discussed most of

the claims concerning testimonial evidence. As to the prosecutor's

summation, the absence of a timely defense objection signifies

that the remarks were not prejudicial.         See State v. Ramseur, 106

N.J. 123, 323 (1987).       Considered in the context of the tenor of

the trial and the State's abundant evidence, the prosecutor's



                                   27                                  A-4079-15T4
remarks did not constitute misconduct let alone reversible error.

State v. Timmendequas, 161 N.J. 515, 575 (1999).

                                   V.

     In Point I, defendant argues the trial court erred when it

denied defendant's request to instruct the jury on the lesser-

included     offenses     of       aggravated     manslaughter        and

passion/provocation manslaughter.       We disagree.

     An offense is a lesser-included offense 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

                (2) It consists of an attempt or
           conspiracy to commit the offense charged or
           to commit an offense otherwise included
           therein; 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, property
           or public interest or a lesser kind of
           culpability   suffices    to   establish   its
           commission.

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

A trial court "shall not charge the jury with respect to an

included offense unless there is a rational basis for a verdict

convicting the defendant of the included offense."     N.J.S.A. 2C:1-

8(e).




                                28                               A-4079-15T4
     In view of these statutory sections, when an appellate court

reviews a trial court's denial of a defendant's request for a

charge on a lesser-included offense, the appellate court must

determine "whether 'the evidence presents a rational basis on

which the jury could [1] acquit the defendant of the greater charge

and [2] convict the defendant of the lesser.'"       State v. Carrero,

229 N.J. 118, 128 (2017) (quoting State v. Brent, 137 N.J. 107,

117 (1994)).     "If such a rational basis exists, a trial court's

failure to give the requested instruction is reversible error."

Ibid. (citing Brent, 137 N.J. at 118).

     An actor commits aggravated manslaughter when "[t]he actor

recklessly causes death under circumstances manifesting extreme

indifference to human life."      N.J.S.A. 2C:11-4(a)(1).      An actor

commits passion/provocation manslaughter when the actor commits

"[a] homicide which would otherwise be murder . . . in the heat

of passion resulting from a reasonable provocation."            N.J.S.A.

2C:11-4(b)(2).      Aggravated   manslaughter   is   a   lesser-included

offense of murder, State v. Galicia, 210 N.J. 364, 400 (2012)

(citation omitted), as is passion/provocation manslaughter, State

v. Robinson, 136 N.J. 476, 482 (1994) (citation omitted).          Thus,

the question presented in this appeal is whether there was a

rational basis on which the jury could have acquitted defendant



                                  29                             A-4079-15T4
of murder and convicted him of either aggravated manslaughter or

passion/provocation manslaughter.    We think not.

       Defendant told police that while Sanchez was asleep, the

victim "touched" him and began undoing Sanchez's belt.      Sanchez

woke up, became angry, shoved the victim to the floor and punched

him.   When defendant attempted to calm Sanchez, Sanchez said, "we

have to kill him.   We have to finish him."   In response, defendant

went into the kitchen, grabbed a knife, returned, and stabbed the

victim once in the neck, inflicting the wound that proved fatal.

Before the victim died, however, defendant and Sanchez put him in

the bathtub, ignoring his pleas for his life.    As the co-defendant

disemboweled the victim, they watched him die.

       Based on defendant's account of the homicide, there was no

rational basis for the jury to acquit him of murder.    A defendant

commits murder when he "purposely causes death or serious bodily

injury resulting in death," or "knowingly causes death or serious

bodily injury resulting in death."      N.J.S.A. 2C:11-3(a)(1) and

(2).

       Defendant, by his own admission, stabbed the victim in the

neck in response to Sanchez saying, "we have to kill him.    We have

to finish him."   Defendant then disregarded the victim's pleas for

life and disemboweled him.    Under those circumstances, there was



                                30                           A-4079-15T4
no rational basis for the jury to conclude defendant did not either

purposely or knowingly kill the victim.

     Nor was there any evidence that would have supported a theory

that defendant stabbed the victim in the neck and disemboweled him

"in the heat of passion resulting from a reasonable provocation."

N.J.S.A. 2C:11-4(b)(2).

     Defendant asserts the cause of death was a single stab wound

to the neck that severed the victim's jugular vein.   Based on the

testimony of a neighboring tenant, defendant argues that "[p]rior

to the stab wound, the victim and the defendants were arguing for

more than one hour.     Banging could be heard similar to moving

furniture."   Defendant also points out the victim had "superficial

facial bruises as if in a fight."    He adds, "[c]apping it all was

that there had been a party at which substantial liquor had been

consumed as evidenced by the number of beer bottles recovered."

Defendant asserts, "[b]ased on this factual scenario, there was a

rational basis for a jury charge on aggravated manslaughter."

Based on the same evidence, defendant asserts there was a rational

basis for passion/provocation manslaughter.

     Defendant neither disputes nor refutes that he walked away

from the victim and Sanchez, retrieved a knife from the kitchen,

returned, and stabbed the victim in the neck, severing his jugular

vein, all in response to Sanchez saying "we have to kill him."

                                31                          A-4079-15T4
Moreover,     even   if     somehow   the   record   could      be   construed       to

demonstrate defendant was acting only recklessly — as opposed to

knowingly or intentionally — when he stabbed the victim in the

neck,   defendant     transporting      the    victim     to   the       bathtub   and

disemboweling him negates any rational basis for such a conclusion.

Moreover, there was no rational basis for concluding defendant

acted   in    the    heat    of   passion     resulting    from      a    reasonable

provocation.

     In short, no evidence provided a rational basis for the jury

to acquit defendant of murder and convict him of either aggravated

manslaughter or passion/provocation manslaughter.

                                       VI.

     In      Point   VIII,     defendant      challenges       his   sentence        as

excessive.      He contends the court gave too little weight to his

cooperation with the State by testifying at Sanchez's trial.                         We

are unpersuaded.          A defendant's disagreement with the weight a

sentencing court gives to aggravating and mitigating factors,

N.J.S.A. 2C:44-1, is not a basis for reversing a sentence.                      Here,

the sentencing record both establishes the trial court followed

the sentencing guidelines and supports the court's findings of

aggravating and mitigating factors.              Under those circumstances,

we will only reverse if the sentence "shock[s] the judicial

conscience" in light of the particular facts of the case.                       State

                                       32                                     A-4079-15T4
v. Roth, 95 N.J. 334, 364-65 (1984).         Considering the particular

facts of this case, the sentence does not shock the judicial

conscience.

                                    VII.

     In summary, the reasons the trial court denied defendant's

motion to suppress his confession to Bergen County Prosecutor's

Office detectives were amply supported by credible evidence in the

motion record.      The errors defendant alleges occurred as the State

presented     its    case     at   trial,   considered   separately    or

collectively, were not clearly capable of producing an unjust

result.     There was no rational basis to support a jury charge on

either    aggravated     or    passion/provocation   manslaughter,    and

defendant's sentence does not shock the judicial conscience.          For

these reasons, we affirm defendant's conviction and sentence.

     Affirmed.




                                     33                         A-4079-15T4
