STATE OF NEW JERSEY v. JOSE CRUZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0916-03T40916-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE CRUZ,

Defendant-Appellant.

_______________________________

 

Submitted: February 15, 2006 - Decided March 10, 2006

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 00-09-1707.

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Fodai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jose Cruz was convicted by a jury of first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree burglary, N.J.S.A. 2C:18-2 (count two); third-degree theft, N.J.S.A. 2C:20-3 (count three); first-degree kidnapping, N.J.S.A. 2C:13-1b (count four); and third-degree terroristic threats, N.J.S.A. 2C:12-3b (count five). He was acquitted of two weapons charges. Following the denial of a motion for a new trial, defendant was sentenced to a twenty-five year custodial term, subject to NERA, on the kidnapping conviction. He also received concurrent terms of twenty years, subject to NERA, on the robbery conviction; ten years on the burglary conviction; and five years each on the theft and terroristic threat convictions. His co-defendants Modesto Rodriguez, Adam Rubeen and Roman Alexander each pled guilty to first-degree robbery; Rodriguez received a twelve-year custodial sentence and the others each received eight-year custodial sentences, all of which were subject to the NERA parole disqualifier.

Defendant advances the following arguments on appeal:

POINT I

THE COURT'S EXCESSIVE EMPHASIS TO THE JURY THAT IT WAS NOT TO BE SWAYED BY SYMPATHY FOR THE DEFENDANT, WHO HAD SINCE THE INCIDENT SUSTAINED AN INJURY THAT LEFT HIM WHEELCHAIR-BOUND, DEPRIVED HIM OF HIS RIGHT TO A FAIR AND IMPARTIAL JURY.

POINT II

THE COURT ERRED IN ITS DECISION TO ADMIT THE PRIOR INCONSISTENT STATEMENTS OF ADAM RUBEEN AND ROMAN ALEXANDER PURSUANT TO N.J.R.E. 803(a)(1)(A) AND STATE V. GROSS.

POINT III

THE COURT ERRED IN ADMITTING A LENGTHY, DETAILED STATEMENT OF THE VICTIM TO POLICE UNDER THE EXCITED UTTERANCE EXCEPTION TO THE HEARSAY RULE.

POINT IV

THE EXTREME DISPARITY BETWEEN THE SENTENCE IMPOSED ON DEFENDANT AND THOSE IMPOSED ON HIS THREE, EQUALLY CULPABLE CODEFENDANTS WAS SO UNJUST AS TO REQUIRE REVERSAL OF HIS SENTENCE AND A REMAND FOR RESENTENCING.

POINT V

DEFENDANT'S THEFT CONVICTION MUST BE MERGED INTO HIS ROBBERY CONVICTION (Not Raised Below).

We affirm the convictions. However, although not argued, the sentence imposed on the robbery, burglary and kidnapping convictions are above the presumptive terms for those offenses; therefore, a remand for re-sentencing is mandated in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005) (Natale II).

The convictions arose out of a home invasion of William Cottrell and theft of about $124,000. The evidence at trial revealed that the victim had a sister-in-law, Judy Rolon, who was involved in the drug trade and who was dating defendant, a/k/a "Chickie." Apparently when Cottrell was not home, defendant would bring large sums of money to Cottrell's house, and Rolon would hide it there. Defendant devised a plan and recruited co-defendants to break into the house, telling them there was a significant amount of money inside, and no one was home.

On November l0, 1999, defendant picked up Rodriguez, Rubeen and Alexander in his white BMW and drove them to Cottrell's house in Rochelle Park. At about 5:30 p.m. they broke in, grabbed Cottrell and threatened him while brandishing knives. They then tied him up for several hours, refusing to give him his heart medicine, while they ransacked the house and struggled with the upstairs safe. The men talked in Spanish to one another, and Cottrell heard someone identified as "Chickie."

After Rubeen found the cash under a sauna, bundled with a label stating the amount, the assailants left the house. They walked by the railroad tracks for about a mile to a bar where defendant picked them up in his car. They then drove back to New York City, where they divided the money evenly at a laundromat in the Bronx and parted company.

At about 10:00 p.m., after the intruders left, Cottrell was able to run next door for help, still tied to the chair. His neighbor unbound Cottrell's hands and called the police. The police arrived soon thereafter, while Cottrell was still pale, shaking, and clutching his chest while claiming an incipient heart attack. Cottrell provided the officers with a description of the incident and intruders and was transported to Hackensack University Hospital.

Defendants were apprehended after a lengthy investigation. Upon their arrests in New York City, Rubeen and Alexander made formal statements to the Bergen County Prosecutor's Office and the Rochelle Police Department, which they later recanted at defendant's trial, claiming they were on drugs at the time. More particularly, on March 6, 2000, Rubeen viewed photographs and made a statement in which he described the incident, identified defendant as the planner of the crime and driver, and identified defendant's white BMW as the means of transportation. He also identified Rodriquez as another participant, and admitted that the four of them evenly split the $124,000 robbery proceeds. On July 20, 2000, Alexander admitted his involvement in the crime and similarly identified the photographs of defendant, Rubeen and Rodriquez as his accomplices and the white BMW as the means of transportation. Following a Gross hearing, the statements were admitted.

Defendant and Rodriquez were arrested on March 7, 2000. The next day when defendant was served with the complaint, he blurted out the following inculpatory statements: "How could I be charged with theft when I didn't take anything?" and "We only got $80,000 out of the house and, okay, I drove them, but I didn't go in the house." Defendant was convicted, the jury specifically having found him to have been an aider and an abetter.

In January 2002, defendant fled the jurisdiction to California, where he was shot and rendered a paraplegic. As a result, he was confined to a wheelchair at the time of trial. The prosecutor expressed concern that he could not elicit testimony about how defendant was injured, thus it would be unfair for the defense to have the jury believe, even subconsciously, that defendant's injuries resulting in paraplegia were related to the crime, and have him receive undeserved sympathy. Accordingly, to make certain from the outset that defendant's physical condition was removed as an issue in the case and would not enter into the jurors' deliberations, Judge Venezia gave the following instruction to two panels of prospective jurors:

The fact that [defendant] is unfortunately wheelchair bound should not in any way enter into your function as jurors in this case in deciding his guilt or innocence. [Defendant] was not wheelchair bound at the time of the alleged events here; namely, on November l0, 1999; nor is his wheelchair status in any way related to the events of this case.

You must decide this case without passion, prejudice or sympathy solely on the facts of this case as you find those facts to be.

An instruction of this type was clearly necessary, as was evident by the fact that one potential juror advised the court that defendant's wheelchair-bound status made it impossible for him to serve as a juror, which view he had not shared with any other juror. We perceive nothing prejudicial to defendant in the brief neutral instruction given by the court. We cannot perceive how such statement was "potentially damaging" or may have assumed a disproportionate level of importance in the jurors' minds, which might have served to dilute the State's burden of proof, thereby depriving defendant of a fair trial. On the contrary, the charge not to let sympathy, passion or prejudice affect deliberations tracks the language of the model jury charge, and was the same language repeated by Judge Walsh in the instruction given at the conclusion of the trial. Moreover, this instruction is equally applicable to the status of Cottrell, who suffered from a heart condition.

We find no error in Judge Walsh's admission of Rubeen's and Alexander's statements made upon arrest after they had recanted at trial. R. 2:11-3(e)(2). The trial judge performed a thorough analysis of the factors set forth in State v. Gross, supra, 121 N.J. at 10, made detailed credibility findings in favor of the officers and against both Rubeen and Alexander, and concluded that the statements were reliable and worthy of substantive admission. We are satisfied there is substantial credible evidence in the record to support this ruling, giving due regard to the ability of the factfinder to judge the credibility of the witnesses who testified at the Gross hearing. State v. Locurto, 157 N.J. 463, 470-71 (1999).

Whether or not Cottrell's description of the intruders could be classified as an excited utterance, we agree that an insufficient foundation was laid for Lieutenant Flannelly to have read from his report. Regardless, the statement challenged was harmless error as it did not implicate defendant. R. 2:10-2. At trial, Cottrell conceded he could not identify defendant and was never introduced to him as Rolon's boyfriend. Nor was there any evidence presented that defendant had a deep voice. Thus, it is pure speculation that because Cottrell identified the fourth suspect as someone who sounded "much older" than the others "with a deeper voice" and defendant was thirty-two at the time of the incident, the jurors would assume he was that person. Rather, the jury convicted defendant of the crimes because of the other overwhelming evidence, including Rubeen's and Alexander's statements and defendant's own admission as to the amount of money taken from the Cottrell house.

 
Turning to defendant's sentence, the presumptive term for kidnapping is twenty years, N.J.S.A. 2C:44-1f(1)(a); it is fifteen years for first-degree robbery, N.J.S.A. 2C:44-1f(1)(b), and seven years for second-degree burglary, N.J.S.A. 2C:44-1f(1)(c). Defendant received sentences of twenty-five years, twenty-years and ten years on the respective convictions based on aggravating factors two, three, six, nine and twelve. N.J.S.A. 2C:44-1. Accordingly, we remand for re-sentencing in accordance with State v. Natale, supra, 184 N.J. at 487 (Natale II), which abolished presumptive terms under New Jersey's sentencing scheme. We note that the State agrees that the theft conviction should have merged with the robbery conviction. In view of our remand, we believe it would be more appropriate for the trial court to consider defendant's disparity challenge contained in Point IV at the re-sentencing hearing.

Convictions affirmed; remanded for re-sentencing.

State v. Gross, 121 N.J. 1 (1990).

The instruction to the first panel included the sentence "That is your function as jurors, to fact find."

Judge Venezia handled the voir dire and Judge Walsh handled the trial.

The State also claimed by way of footnote that there should have been a five-year parole supervision term on the first-degree robbery conviction, and because second-degree burglary was a NERA offense, the trial court should have imposed an 85% parole term and three-year parole supervision. This issue can be addressed on the sentencing remand.

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A-0916-03T4

March 10, 2006