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

NOT FOR PUBLICATION WITHOUT THE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.
2 A-2654-15T3

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 lifethreatening 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 
3 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. 
4 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.
5 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). 
6 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, 
7 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 
8 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. 
9 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
10 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. 
11 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.
12 A-2654-15T3

More importantly, this case was not about observational misidentification. 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 
13 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 
14 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. 
15 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.