STATE OF NEW JERSEY v. LUIS A. MATEO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5286-03T45286-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS A. MATEO,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 27, 2005 - Decided

Before Judges Lefelt, R. B. Coleman and

Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Ocean County,

Indictment No. 02-11-1536.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Susan Brody,

Assistant Deputy Public Defender, of

counsel and on the brief).

Thomas F. Kelaher, Ocean County

Prosecutor, attorney for respondent

(Samuel Marzarella, Assistant

Prosecutor, of counsel and on the

brief).

PER CURIAM

The State charged defendant Luis Mateo with first-degree armed robbery, N.J.S.A. 2C:15-1, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The two charges were tried before an Ocean County jury. After the jury found defendant guilty of both charges, the sentencing judge merged the weapon offense into the first-degree armed robbery and imposed a maximum twenty-year custodial term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals, seeking reversal of his conviction and sentence for the following three reasons: (1) the trial court improperly questioned a State witness, eliciting inadmissible other-crimes evidence; (2) a police officer testified that he was familiar with defendant through prior "incidences"; and (3) the trial court imposed an excessive sentence that also violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We affirm defendant's convictions, but remand for re-sentencing under State v. Natale, 184 N.J. 458 (2005).

Defendant's conviction arose from a deceptive scheme, which began with defendant asking the victim in Spanish whether he wanted to have sex, for $20, with defendant's girlfriend and co-defendant, Brianne Appler, who did not speak Spanish. Once defendant and Appler had the victim in a rooming house, defendant drew a concealed sword and demanded all of the victim's money. The victim gave Appler his entire wallet containing $300. Appler returned $20 to the victim, and defendant and Appler fled from the building.

Defendant's first argument relates to the trial court's questioning of Appler, who had pled guilty to conspiracy to commit robbery and was testifying against defendant on behalf of the State. During cross-examination, defense counsel got Appler to concede that she and defendant never agreed to commit a robbery.

After both counsel had completed their examinations of Appler, the trial judge questioned the witness. The purpose of the judge's examination was to determine how Appler knew to go along with the scheme when she and defendant never engaged in any discussion concerning the robbery of the victim, and Appler did not speak Spanish.

During the judge's examination, Appler testified that she knew what was happening because, though defendant "did not mention anything like that, but now that I remember the time before all of this happened." Defense counsel interrupted Appler at this point with an objection that was immediately overruled by the judge. Appler continued her answer, stating "before the incident, I did have another encounter, but not with the weapon, that I was getting money." The judge then asked "[s]o you understood this?" and Appler replied "yes" that's how she knew to play along with the scheme.

A judge may, of course, question witnesses. State v. Riley, 28 N.J. 188, 200 (1958), appeal dismissed, cert. denied, 359 U.S. 313, 3 L. Ed. 2d 832, 79 S. Ct. 891 (1959). The judge may ask questions to clarify witness testimony and to elicit material facts[.]" State v. Medina, 349 N.J. Super. 108, 131-32 (App. Div. 2002). But a judge must be careful not to take on the role of the prosecutor. State v. Avena, 281 N.J. Super. 327, 337 (App. Div. 1995).

Here, there was some ambiguity and confusion in Appler's testimony, especially considering defense counsel's cross-examination, which resulted in Appler's concession that there was no agreement to commit a robbery even though she had pled guilty to a conspiracy for that purpose. The judge's questions were designed to clarify how Appler knew what to do, if there was no agreement. This was not an abuse of discretion, as the judge was not required to allow her testimony to remain muddled.

Defendant further argues, however, that the judge's questions improperly elicited inadmissible other-crimes evidence under N.J.R.E. 404(b). Appler's testimony implied that defendant engaged in a prior robbery involving a similar prostitution ruse that served as the model for the robbery in this case. Unfortunately for defendant, however, Appler's other-crimes evidence was admissible, see State v. Cofield, 127 N.J. 328, 338 (1992), and relevant to defendant's intent, State v. Mulero, 51 N.J. 224, 228 (1968), and his use of a pretext to lure his victim into a vulnerable position, State v. Oliver, 113 N.J. 141, 150 (1993).

Defendant's second argument asserts that during the State's examination of one of the police officers, additional inadmissible other-crimes evidence was placed before the jury. This occurred, according to defendant, when the prosecutor asked how the officer was familiar with defendant and Appler and the officer answered through "[p]ast incidences."

Immediately after the officer's explanation, the State modulated the potential prejudice inherent in the comment. The State had the officer agree that he "just knew them from the area." Immediately following the prosecutor's questions, the trial judge provided the jury with a curative instruction. The judge explained that officers encounter "many people, under many circumstances, in all contexts. The fact that he had prior contact with these individuals is not to be interpreted by you as having any contact in a negative sense[.]" The judge specifically told the jury that they could not "infer from that comment that those prior contacts or instances had anything to do with . . . any wrongdoing of any nature."

Even assuming that the officer's statement implied other-crimes and was error, the error was harmless. The comment was fleeting and quickly cured with the follow-up question and the judge's instruction. Any error was not "clearly capable of producing an unjust result." R. 2:10-2; see State v. Miller, 159 N.J. Super. 552, 561-62 (App. Div. 1978) (holding improper reference to "mug shots" harmless due to cursory nature and curative instruction).

Finally, defendant argues that his sentence was excessive and violative of his constitutional rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Here, we find some merit in defendant's argument.

Blakely applied the rule expressed in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000), that any fact, other than a prior conviction, which increases the sentence beyond the statutory maximum must be found by a jury beyond a reasonable doubt. Blakely, supra, 542 U.S. at ___, 124 S. Ct. at 2536, 159 L. Ed. 2d at 412. Under Blakely and Apprendi, the "statutory maximum" is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at ___, 124 S. Ct. at 2537, 159 L. Ed. 2d at 413; Apprendi, supra, 530 U.S. at 482-83, 147 L. Ed. 2d at 450, 120 S. Ct. at 2359.

In imposing a maximum twenty-year term for the first-degree crime, the judge found four aggravating factors that increased the sentence over the presumptive fifteen-year term. These factors were not found by the jury and included the risk that defendant will commit another offense, the extent of defendant's prior criminal record and the seriousness of the offenses for which he had been convicted, the need to deter both the defendant and others from violating the law, and the "mere imposition of a fine or a lesser penalty or simple order of restitution for this robbery would be perceived by this defendant and others . . . [as] a cost of doing business for the commissions of robbery."

The cost-of-business aggravating factor, N.J.S.A. 2C:44-1a(11), concerns "situations where the imposition of a monetary penalty without a term of imprisonment 'would be perceived by the defendant or others merely as part of the cost of doing business[.]'" State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002), aff'd on other grounds, 175 N.J. 612 (2003). The factor is applicable only when "the sentencing judge is balancing a non-custodial term as against a state prison sentence." Ibid. Here, because a first-degree crime was involved and a prison sentence mandated, the factor was inapplicable. Ibid.

The other three aggravating factors found in this case are offender-based factors and may plausibly come within Blakely's recidivism exception. State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). Nevertheless, because the cost-of-business aggravating factor was erroneously considered by the sentencing judge, we remand pursuant to State v. Natale, 184 N.J. 458, 484 (2005), which conformed our sentencing scheme to Blakely's concerns by declaring the presumptive term unconstitutional. Upon remand, the sentencing judge must resentence defendant without considering the presumptive term, id. at 495-96, and without including in the weighing process the cost-of-business aggravating factor.

Remanded for resentencing, affirmed in all other respects.

 

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A-5286-03T4

October 18, 2005