STATE OF NEW JERSEY v. JUAN ESCALANTE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1171-04T41171-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

JUAN ESCALANTE,

Defendant-Appellant/

Cross-Respondent.

_____________________________________

 

Submitted March 29, 2006 - Decided May 16, 2006

Before Judges Wecker and Graves.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

03-06-1205-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant/cross-respondent

(Abby P. Schwartz, Assistant Deputy Public

Defender, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney

for respondent/cross-appellant (Robert E.

Bonpietro, Deputy Attorney General, of counsel

and on the brief).

PER CURIAM

Defendant, Juan Escalante, born April 13, 1986, was almost seventeen years old when he and his friend, Edgar Rivera, robbed a gas station on March 13, 2003. In a statement to the police, Juan admitted that he punched the attendant in the neck three times. He said that he was armed with an air-freshener, which he used to spray the victim, and Edgar was carrying a bat. Juan and his friend took approximately $90 from the gas station attendant and fled by car.

The State moved to waive jurisdiction and refer the case to the Law Division, pursuant to N.J.S.A. 2A:4A-26. The Family Part judge conducted a waiver hearing on May 22 and May 29, 2003, and determined that the State had proved "probable cause for a waiver under Counts 1 and 3." Defendant was indicted for conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count 1), and first-degree armed robbery, N.J.S.A. 2C:15-1 (Count 2).

On April 2, 2004, defendant entered a guilty plea to first-degree robbery, N.J.S.A. 2C:15-1. The plea agreement provided that the State would recommend a ten-year sentence, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). The Law Division judge, however, imposed a five-year sentence, with an 85% parole ineligibility term. The judgment of conviction reflects the judge's reasons for her sentence:

The aggravating factor is the need for deterring the defendant and others from violating the law. The mitigating factors are the defendant's conduct was the result of circumstances unlikely to recur; the character and attitude of the defendant indicate that he is unlikely to commit another crime or offense; and the willingness of the defendant to cooperate with the law enforcement authorities.

The court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and that the interests of justice demand that the defendant be sentenced to a term appropriate to a crime one degree lower.

The State filed a timely appeal of sentence, see N.J.S.A. 2C:44-1f(2), presenting these arguments:

POINT I

DEFENDANT'S UNCONDITIONAL GUILTY PLEA TO FIRST DEGREE ARMED ROBBERY WAIVED ANY CLAIM THAT HIS DUE PROCESS AND FAIR TRIAL RIGHTS WERE VIOLATED IN THE JUVENILE WAIVER PROCEEDING.

POINT II

DEFENDANT SHOULD BE RESENTENCED TO A TEN-YEAR PRISON TERM WITH AN EIGHT AND ONE HALF YEAR PAROLE INELIGIBILITY PERIOD.

Defendant filed a cross-appeal, arguing as follows:

POINT I

AS THE VICTIM WAS AVAILABLE TO TESTIFY, THE TRIAL COURT'S RELIANCE ON STATEMENTS THAT WERE NEVER SUBJECTED TO CROSS-EXAMINATION PRODUCED AN UNRELIABLE RESULT IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.)

We have reviewed the record in light of the contentions of both parties, and find insufficient merit in defendant's argument that the victim should have been required to testify at the waiver hearing to warrant extensive discussion in a written opinion. See R. 2:11-3(e)(2). Hearsay evidence is admissible to establish probable cause. See, e.g., U.S. v. Matlock, 415 U.S. 164, 173, 94 S. Ct. 988, 994, 39 L. Ed. 2d 242, 250 (1974); State v. Brown, 170 N.J. 138, 157 (2001). We therefore affirm both the waiver of Family Part jurisdiction to the Law Division and entry of defendant's guilty plea.

We do, however, find support for the State's cross-appeal of defendant's sentence.

These were the judge's findings in support of the lower sentence:

THE COURT: Mr. Escalante is 18 years of age. He committed this offense when he was 16 and he was waived up to the adult court. He has not committed any offenses since that date, although he does have a juvenile record. I'll note that there's one burglary and there's a criminal mischief, possession of a weapon. I don't know what that possession was.

But really not a very disturbing the peace. Not a very serious record. I will note that, as I said, he was 16 years old when this occurred. He was on probation in juvenile court. His probation officer said that he was a very good individual and this was shocking to him.

So he pled guilty to armed robbery, a first degree offense, carrying with it a possible sentence, maximum of 20 years of [sic] 85 percent. His plea agreement calls for 10 years with 85 percent. Again, this was a robbery of a gas station. He was in possession of a knife and pepper spray. The victim was not injured.

The aggravating factor is the need to deter this defendant and others from violating the law. But I find as a mitigating factor that there were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense. And that is he was using controlled dangerous substances and he was very, very young.

I find that his conduct is the result of circumstances unlikely to [recur]. That his character, his attitude indicate he is unlikely to commit another offense and that he is willing to cooperate with law enforcement authorities.[]

The Court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors. And that the interest of justice demand that the defendant be sentenced to a term appropriate to a crime one degree lower.

We will sentence the defendant on count 2 to five years to the custody of the Commissioner of the Department of Corrections, with four years, three months and one day parole ineligibility. And three years of parole supervision upon his release pursuant to No Early Release Act.

We understand the judge's apparent concern that the sentencing range for a first-degree crime, especially when combined with the mandatory 85% parole term, is potentially harsh. But we are also convinced that the judge gave insufficient explanation for finding that mitigating factors eight, nine, and twelve apply; for concluding that "the interest of justice demands" a sentence appropriate to a second-degree crime, see N.J.S.A. 2C:44-1f(2); and finally, for imposing a sentence at the bottom of the second-degree range. Nor is defendant's record so favorable as to justify that lenient sentence without explicit findings based on the record.

This is defendant's juvenile record: On February 25, 1998, he was charged with a simple assault; the charge was diverted to a juvenile conference committee. Multiple charges arising on May 28, 1999, resulted in adjudications of delinquency for acts that would constitute burglary, N.J.S.A. 2C:18-2, theft, N.J.S.A. 2C:20-3, and criminal mischief, N.J.S.A. 2C:17-3, if committed by an adult. Ten additional charges of criminal mischief, five additional burglary charges, and four theft charges, all arising out of what was apparently a "spree" on May 28, were dismissed, and defendant was sentenced to eighteen months probation for one count each of burglary, theft, and criminal mischief on September 20, 1999. On the same date, defendant also was sentenced to a concurrent probationary term for possession of a weapon on June 22, 1999.

As a result of an incident on March 16, 2000, while defendant was still on juvenile probation, he was adjudicated delinquent based upon conduct that would have constituted fourth-degree eluding police by auto if committed by an adult. N.J.S.A. 2C:29-2. He was sentenced on June 19, 2000, to a one-year term of probation, concurrent to the probationary term he was already serving. In the last matter that was concluded in the Family Part before the robbery, was adjudicated delinquent for disturbing the peace, a disorderly persons offense if committed by an adult. N.J.S.A. 2C:33-2. Defendant received six months probation when he was sentenced for that offense on January 27, 2003.

We vacate defendant's sentence and remand for reconsideration of sentence, with due regard to applicable standards as well as to the real-time effect of NERA.

 
Conviction affirmed; sentence vacated; remanded for resentencing.

The family court complaint alleged first-degree robbery (Count 1), third-degree theft (Count 2), and second-degree aggravated assault (Count 3).

Thus the judge found mitigating factors eight, nine, and twelve, N.J.S.A. 2C:44-1b (8) (9), and (12).

No further details of that offense appear in the record.

(continued)

(continued)

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A-1171-04T4

May 16, 2006