STATE OF NEW JERSEY v. MISAEL H. CORDERO

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5849-02T45849-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MISAEL H. CORDERO,

Defendant-Appellant.

_____________________________

 

Submitted May 30, 2006 - Decided August 15, 2006

Before Judges Cuff, Holston, Jr., and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 2000-12-3513.

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

Zulima V. Farber, Attorney General for respondent (Mary E. McAnally, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

On December 22, 2000, an Essex County Grand Jury returned Indictment No. 2000-12-3513, charging defendant, Misael H. Cordero, and co-defendants, Javier Santiago and Francisco Ruiz, with second-degree conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a (Count One); first-degree purposeful or knowingly murder, contrary to N.J.S.A. 2C:11-3a (Count Two); second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count Three); first-degree felony murder, contrary to N.J.S.A. 2C:11-3a(3)(Count Four); first-degree robbery, contrary to N.J.S.A. 2C:15-1 (Count Five); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b (Count Six); and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (Count Seven). Prior to trial, co-defendants Santiago and Ruiz negotiated guilty pleas that called for them to testify against defendant.

Following a twenty-day jury trial, defendant was found guilty on all counts. Prior to sentencing on July 31, 2002, defendant renewed a motion made before trial but not decided by the court, seeking to dismiss Counts One, Three, Five, Six, and Seven (the five non-murder counts) as barred by the Statute of Limitations, N.J.S.A. 2C:1-6. The court granted the motion. However, at sentencing, the judge stated that Counts One, Three, Four, and Seven were "dismissed by merger," and Counts Five and Six were "dismissed on the statute of limitation grounds," leaving only the conviction on Count Two for sentencing. Defendant was sentenced to a life term with a thirty-year period of parole ineligibility to run concurrent with a pre-existing sentence. The judge also awarded defendant 3,247 days of gap-time credit pursuant to N.J.S.A. 2C:44-5b(2). All appropriate monetary penalties were imposed. Defendant appeals, and we affirm.

In late April or early May 1991, knowing that Elias Lopez was going to be returning from Puerto Rico with a large amount of cocaine, defendant and Santiago plotted to kill him and to steal the cocaine. Defendant and Santiago agreed that Santiago would kill Lopez in exchange for $20,000, which would be paid after the drugs were sold. On May 6, 1991, defendant and Santiago requested that Ruiz dig a hole in the dirt floor of the premises at 133 Parker Street, Newark, because they were "going to kill a guy." Ruiz agreed to dig the hole in exchange for $400.

On May 7, 1991, Lopez arrived at defendant's apartment at 126 Parker Street, Newark, to take part in a scheduled drug sale. Inside defendant's apartment were defendant and his girlfriend, Cynthia Cordero. Santiago remained outside the apartment. Having observed Lopez arrive, Santiago went to the basement of 126 Parker Street, left a bag containing $2,000 in cash and newspapers cut to resemble stacks of cash on a table, and then joined the others upstairs in defendant's apartment. After defendant and Lopez "tested the coke," defendant and Santiago lured Lopez to the basement where Lopez anticipated to be paid. As Lopez proceeded into the basement, Santiago shot him in the back of the head, killing him. Defendant took the money, drugs, and Lopez's car keys. After the murder, defendant and Cynthia drove to her mother's house, where defendant showered and changed into new clothes purchased by Cynthia with money provided by defendant. Defendant, after having returned to 126 Parker Street with Jose Carrabollo, a friend, directed Carrabollo to clean the basement and wrap Lopez's body. Defendant and Santiago left the basement in order to dispose of Lopez's car by abandoning it in East Orange. Upon their return to the place of the murder, Santiago and Carrabollo placed Lopez's body into the trunk of defendant's car, drove it across the street to 133 Parker Street, and buried it in the basement grave. At a later date, cement was poured over the dirt floor in the basement at 133 Parker Street.

In early 1999, when Cynthia Cordero was questioned as part of an investigation into an unrelated homicide, she provided a formal statement about Lopez's murder. In April 1999, the police executed search warrants at 126 and 133 Parker Street. Lopez's remains were recovered from the basement of 133 Parker Street, after which an autopsy confirmed the remains as being that of Lopez. The autopsy further confirmed the entrance and exit wounds in the back of the neck and forehead areas of Lopez's skull. The cause of death was determined to have been a gunshot wound to the head.

On appeal, defendant raises the following issues:

POINT I.

DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL BY AN IMPARTIAL JURY AND TO DUE PROCESS OF LAW WERE VIOLATED WHEN THE COURT DENIED HIS REQUEST TO EXCUSE AN OBJECTIONABLE JUROR FOR CAUSE.

1. THE TRIAL COURT ERRED BY FAILING TO REMOVE A JUROR FOR CAUSE.

2. CORDERO WAS FORCED TO EXPEND HIS LAST PEREMPTORY CHALLENGE TO DISMISS JUROR CARTER.

3. AT LEAST ONE OF THE REMAINING JURORS THAT SAT ON THE JURY WAS A PARTIAL JUROR.

POINT II.

THE COURT'S FAILURE TO GIVE A LIMITING INSTRUCTION CONCERNING THE TWO CO[-]DEFENDANTS' GUILTY PLEAS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (NOT RAISED BELOW).

POINT III.

BECAUSE THE COURT IMPOSED A LIFE TERM UNDER THE MISTAKEN BELIEF THAT THE SENTENCE WOULD BE REDUCED BY ITS AWARD OF CLOSE TO NINE YEARS OF GAP-TIME CREDIT, DEFENDANT IS ENTITLED TO A NEW SENTENCING HEARING AT WHICH THE COURT [SHOULD] RECONSIDER[] WHETHER IT WOULD IMPOSE A LIFE TERM IN THE ABSENCE OF ANY GAP-TIME CREDIT.

Defendant raises the following arguments pro se:

POINT I.

DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS PROVIDED FOR IN THE FEDERAL AND STATE CONSTITUTIONS WAS VIOLATED WHEN THE COURT FAILED TO DISMISS THE NON-HOMICIDE COUNTS OF THE INDICTMENT ON A TIMELY PRE-TRIAL MOTION PREDICATED ON PERTINENT STATUTORY PROVISIONS PERTAINING TO OFFENSES WHICH WERE ALLEGED TO HAVE OCCURRED IN EXCESS OF NINE YEARS [PRIOR] TO RETURN OF THE INDICTMENT AND IN EXCESS OF TEN AND ONE-HALF YEARS PRIOR TO THE MOTION WHICH WAS HELD IN ABEYANCE UNTIL AFTER CONVICTION.

POINT II.

JURY SELECTION PROCEDURES EMPLOYED RESULTED IN A DENIAL OF THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO FAIR TRIAL AND DUE PROCESS OF LAW, AS WELL AS FEDERAL CONSTITUTIONAL AND STATUTORILY ENDOWED RIGHTS OF A POTENTIAL JUROR.

POINT III.

FAILURE TO CORRECT THE TESTIMONY OF A WITNESS WHO TESTIFIED THROUGH THE USE OF AN INTERPRETER SERVED TO VIOLATE DEFENDANT'S RIGHT TO FAIR TRIAL AND DUE PROCESS OF LAW[,] CONTRARY TO THE FEDERAL AND STATE CONSTITUTIONS.

POINT IV.

USE OF HEARSAY TESTIMONY AND A DENIAL OF CROSS-EXAMINATION[] VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, FAIR TRIAL[,] AND DUE PROCESS OF LAW[.] ALTERNATIVELY[,] A LIMITING INSTRUCTION SHOULD HAVE BEEN PROVIDED AS TO THE HEARSAY INVOLVED.

POINT V.

ALTERNATIVELY, SHOULD THE COURT AFFIRM THE CONVICTIONS, DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED CONTRARY TO THE FEDERAL AND STATE CONSTITUTIONS BY THE FAILURE TO CREDIT GAP[-]TIME TO THE SENTENCES IMPOSED VIOLATIVE OF STATUTORY PROVISIONS.

I.

Defendant argues that the trial judge erred by failing to remove potential juror Bernard Carter for cause, thereby forcing defendant to expend his last peremptory challenge when removing the juror. Defendant contends that not only because of the result of trial judge's inaction, but also because of his failure to grant defendant's request for additional peremptory challenges, defendant "was unable to dismiss two other objectionable jurors, Audrey Reese and Diane Guarino, who ultimately sat on the jury." The State counters that the judge's decision, denying defendant's application to remove juror Carter for cause, should be affirmed. The State contends that the trial judge correctly exercised his discretion in denying the application, and defendant cannot prove that a partial juror remained on the panel. Although we believe that it would have been better for the trial judge to have erred on the side of absolute impartiality by removing juror Carter for cause, we determine the trial judge did not mistakenly exercise his discretion in denying defendant's request.

At a sidebar conference during the voir dire, juror Carter advised that "although [he did not] think it would affect [his] judgment," his thirty-five year old daughter had been abducted and murdered by a serial killer in Florida, fifteen months earlier. Having received that advice from Carter, the judge asked Carter whether he was "sure it wouldn't have any impact on [his] ability to be fair and impartial in this case[?]" to which Carter responded, "[n]o, sir, it wouldn't." Following up on that response, the judge asked "[w]ould having a case involving a homicide in any way cause you pain, discomfort sitting here listening to testimony perhaps about somebody being killed and -- and be a painful experience for you in light of what -- in light of your recent painful experience?" Carter answered: "At this moment, no, I don't think it would." Concerned about the impact that the Florida murder may have had upon Carter, defendant requested the trial judge to remove the juror for cause. The motion was denied. Questioned again the following day, Carter maintained that his daughter's homicide would not affect his ability to be fair and impartial. After defendant used peremptory challenges to excuse thirteen other potential jurors, defendant used his last peremptory challenge to excuse Carter. Defendant had requested additional peremptory challenges, but his request was denied.

After the jury had been sworn, but before testimony commenced, juror Marilyn Castro had informed the court and counsel, outside the presence of the other jurors, that jurors Guarino and Reese had been discussing the "Judge Judy" television program and traffic tickets. Castro, believing that the jurors may have violated the court's preliminary instructions, felt obligated to report the matter. In light of Castro's information, defendant requested that the jury panel be discharged. After the request was denied, defendant moved for individual interrogation of the jurors to determine whether any other juror had participated in or had overheard the conversations between jurors Guarino and Reese.

On the following day, the judge inquired of each juror whether he or she had spoken with other jurors in the jury room the previous day or had overheard any conversations among any jurors. After Reese and Guarino confirmed their discussions concerning "Judge Judy" television shows, defendant renewed his motion to dismiss the panel. Being "satisfied there [was] no basis for discharging this jury," the judge denied the motion and reminded the jurors that "the rules are you can[not] talk about this case" during trial breaks, and they should be "sensitive in what you tell [other jurors] about incidents involving yourself, your family, or your friends[] [b]ecause I would [not] want to take the risk that even though an incident in your past might not have affected your ability to be fair and impartial, that same incident might be taken differently by one of your colleagues."

Although the judge allowed jurors Reese and Guarino to remain on the panel, with Guarino serving as an alternate and not deliberating in the matter, the judge subsequently dismissed juror Castro for cause after learning she had borrowed the court's Bible to review a quotation that defense counsel had stated in his opening statement. The State moved to dismiss juror Castro, and defendant objected. After assessing Castro's credibility, the judge granted the motion, determining that: 1) she was "a loose cannon" and there were real risks in her remaining on the panel; and 2) he did not find her statement that she believed she could be fair and impartial, credible.

It is well-settled that "an impartial jury is a necessary condition to a fair trial." State v. Williams, 113 N.J. 393, 409 (1988). This right is secured by Article I, paragraph 10 of the New Jersey Constitution as well as the Sixth Amendment of the United States Constitution. "'[A] defendant is entitled to a jury that is free of outside influences and will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself.'" State v. Bisaccia, 319 N.J. Super. 1, 12 (App. Div. 1999)(quoting State v. Williams, 93 N.J. 39, 60 (1983)).

To prove that forced use of a peremptory challenge is reversible error, the defendant must meet a three-prong test. Defendant must demonstrate:

(1) that the trial court erred by failing to remove a juror for cause; (2) that the juror in question was eliminated by the exercise of defendant's peremptory challenge and that defendant exhausted his remaining challenges; and (3) that at least one of the remaining jurors that sat on the jury was a partial juror.

[State v. DiFrisco, 137 N.J. 434, 471 (1994), cert. denied, sub nom. DiFrisco v. New Jersey, 516 U.S. 11, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Under the first prong, defendant argues that because Carter's daughter had been murdered, Carter would not have been able to "impartially assess another murder."

"Challenges for cause are based upon proof of legally cognizable grounds of a potential juror's partiality. Peremptory challenges, on the other hand, are something less precise--something the essence of which represents an 'undefinable frisson either of comfort or unease that passes from one person to another.'" State v. Tinnes, 379 N.J. Super. 179, 185 (App. Div. 2005) (quoting State v. W.A., 184 N.J. 45, 55 (2005)).

Trial judges have substantial discretion in determining juror qualification. DiFrisco, supra, 137 N.J. at 459. A trial judge's decision whether to remove a juror for cause will not be reversed unless there has been an abuse of discretion. Ibid. Based upon each juror's responses, the judge must determine whether he or she possesses a view that "would prevent or substantially impair" the performance of his or her duties "in accordance with [the] court's instructions and that juror's oath." Id. at 460. It is important to note that decisions concerning potential bias by prospective jurors often require credibility determinations, and are, therefore, dependant upon the trial judge's observations of the individual; observations which the appellate court is not afforded. State v. Singletary, 80 N.J. 55, 62-63 (1979).

In this case, when Carter was called, he voluntarily advised the court and counsel, "[a]lthough I don't think it would affect my judgment, I had a daughter that was abducted and murdered last January." The judge questioned Carter about the crime, asking if his experience would "have any impact on [his] ability to be fair and impartial". Carter responded that it would not. In a sidebar conference, the judge and the attorneys discussed the situation in relation to Singletary, and the judge denied defendant's application to remove juror Carter for cause.

On the following day, defendant raised the possibility that by allowing Carter to sit on the jury, there was a risk that Carter would sympathize with family members of the victim when they testify, and perhaps would be unable to adhere to his oath. Although this was a valid concern, Carter expressed an ability to keep his personal situation separate, and the judge was satisfied that he would. The judge, finding Carter to be "intelligent," "straightforward," "open," and "honest," stated: "I'm satisfied beyond any reasonable doubt that this juror's discussion of his ability to be fair and impartial is honest, truthful, and genuine in every respect."

The judge concluded by saying:

Again, this is -- this is really remote. And when I take its remoteness on one hand -- take the remoteness of the criminal incident on the one hand and I take the similarity, I also take the fact the --the extenuation of the concept of victim and I take all those factors into consideration, the bottom line is -- is that while I appreciate the language in . . . [Singletary] and I agree that if I had any doubt at all, if I had any doubt of this juror's sense of fairness or mental integrity, if I had the slightest iota of doubt, if I was not convinced beyond a reasonable doubt that this juror could and would be fair, I would agree with you.

But if I [am] honestly convinced and genuinely convinced that there is no basis and that I [am] convinced beyond a reasonable doubt based upon my evaluation of this juror's responses that he can and would and will be fair, I can[not] in good conscience excuse him for cause.

Jurors have a constitutional right as well to be jurors and not to be excused for [any] reason at all. And I [am] satisfied this juror can and should be a fair juror.

We are satisfied that the trial judge carefully considered Carter's ability to serve as a juror, and no abuse of discretion existed in denying defendant's request that Carter be dismissed for cause.

Assuming that the trial judge's decision in not removing juror Carter for cause was erroneous, defendant still had to satisfy the other two requirements of DiFrisco, i.e., he used a peremptory challenge to eliminate the potential juror and he exhausted his peremptory challenges; and at least one remaining juror was partial. We determine that defendant had failed to meet the third prong because he had not provided sufficient evidence to establish juror bias. Mere conversation about the "Judge Judy" television show, a program involving civil cases, is not enough to satisfy the requirement. There was no indication of any outside influences or discussions pertaining to defendant's case.

II.

Defendant argues next that although the trial judge instructed the jury that it could only consider Santiago's and Ruiz's guilty pleas to charges emanating from the murder of Lopez for impeachment purposes, the judge erred by failing to instruct the jury that it could not consider the co-defendants' guilty pleas as substantive evidence of defendant's guilt. Defendant contends that because the latter limiting instruction was not provided, he was deprived of due process and a fair trial. The State argues that the trial judge correctly charged the jury on witness credibility. The State asserts that defendant has failed to meet his burden to show that the jury found him guilty due to the absence of an unrequested-limiting instructing regarding Santiago and Ruiz's guilty pleas.

Ruiz testified that defendant had paid him to dig the victim's grave; and although he had been charged with the same offenses as defendant, Ruiz pled guilty only to the charges of conspiracy and the lesser-included offense of aggravated manslaughter, in exchange for a State's recommendation of a ten-year term with a three-year-and-four-month period of parole ineligibility. Ruiz candidly admitted that it was a "good deal" because the State had made a favorable sentence recommendation in light of the serious murder charges.

Santiago testified that defendant paid him to rob and shoot Lopez, and that he pled guilty only to the lesser-included offense of aggravated manslaughter in exchange for the State recommending a forty-year term with a twenty-year period of parole ineligibility. He also admitted that he had pled guilty to two unrelated homicides and other offenses. On cross-examination, he conceded that he too had received a "great deal" from the State because of his trial testimony.

During summation, defendant argued that his co-defendants' testimony could not be trusted because of the plea deals they had received from the State in exchange for testifying against him. Following summations, the court charged the jury on the underlying legal theories of accomplice, co-conspirator, and principal liability. The judge also instructed the jury on witness credibility, and issued a limiting instruction conforming to the Model Charge concerning Santiago, Ruiz, Cynthia Cordero, and Ada Nazario, the victim's girlfriend. Cordero's and Nazario's convictions were for offenses unrelated to the charges before the court. Defendant never requested a limiting instruction concerning the co-defendants' guilty pleas, nor did he voice an objection to the court's final instructions to the jury. Notwithstanding, defendant now asserts that it was error for the judge not to "explicitly . . . warn the jury that it could not use Santiago['s] and Ruiz's guilty pleas to this offense as evidence of Cordero's guilt."

Rule 1:7-2 provides that "no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict . . . ." Because defendant failed to object below, we review for plain error, i.e., error "clearly capable of producing an unjust result." R. 2:10-2. When considering a jury charge, plain error is "'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. R.B., 183 N.J. 308, 321-22 (2005) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).

Because a defendant's guilt is to be determined on the evidence against him, and not on whether a co-defendant has pled guilty to the same charge, a guilty plea of a co-defendant is inadmissible as substantive evidence of a defendant's guilt. State v. Stefanelli, 78 N.J. 418, 430 (1979). A co-defendant's guilty plea, however, is admissible for purposes of determining credibility. Id. at 433. In Stefanelli, although defendant had not requested a limiting instruction, the Court determined that the trial court was obligated to provide an instruction limiting the use of the evidence to credibility purposes. Id. at 434. The Court, however, concluded that plain error had not been established because there was other independent evidence establishing the defendant's guilt. Id. at 436-37.

We are satisfied that the failure to provide the un-requested instruction that the jury could not use the co-defendants' guilty pleas as substantive evidence of defendant's guilt does not warrant reversal. The judge instructed the jury on the limited use for which the co-defendants' guilty pleas could be considered. The judge stated: "There [is] evidence that the witnesses . . . Francisco Ruiz, and Javier Santiago have previously been convicted of a [sic] crimes. This evidence may be used only to determine the credibility or believability of those witnesses testifying." Moreover, as in Stefanelli, even if we were to find error in the judge's instructions, we are satisfied that it was not "of such a nature as to have been clearly capable of producing an unjust result," Rule 2:10-2, because there was other overwhelming independent evidence of defendant's guilt.

Cynthia Cordero testified that on May 7, 1991, she was with defendant when Santiago and another man came over to defendant's apartment. After all three men had gone into the basement, she heard a gunshot. Afterward, defendant came upstairs with blood on his clothing, carrying a black bag, and instructed Cynthia that they were going to her mother's house. Once there, defendant instructed Cynthia to go buy him new clothes while he showered. Cynthia also testified that she observed brick-like objects and money in the bag defendant had been holding, and that defendant admitted to her he and Santiago had killed Lopez, and had buried him across the street.

Defendant cites State v. Murphy, 376 N.J. Super. 114 (App. Div. 2005), in support of his argument that the trial judge was required to provide a two-fold cautionary instruction, specifying not only that co-defendants' guilty pleas to the lesser-included offenses could be considered for the limited purpose of assessing the co-defendants' credibility, but also that the guilty pleas could not be used as substantive evidence of defendant's guilt. Defendant's reliance on Murphy is misplaced.

After a jury trial, Murphy was convicted of third-degree theft from the person, N.J.S.A. 2C:15-1a(1). During the trial two other participants in the robbery, who had pled guilty to second-degree robbery, testified against Murphy. No other witnesses had placed Murphy at the scene of the robbery. During the trial, the judge, when instructing the jury concerning the co-defendants' guilty pleas, "informed the jury that plea bargaining is 'an acceptable way of resolving a criminal case where a person is actually guilty of the offense[,]'" and "'a judge can only accept a plea agreement on the record when it[] [is] made under oath after the person testifies to the satisfaction of that judge that they are, in fact, guilty of the offense.'" Murphy, supra, 376 N.J. Super. at 121. During the jury charge, the judge instructed the jury that they could consider the co-defendants' guilty pleas in determining the credibility to be given to their testimony. Ibid.

On appeal, Murphy argued that the jury instructions failed to inform the jury that the co-defendants' guilty pleas could not be used as substantive evidence of defendant's guilt. We reversed. In doing so, we acknowledged that the Court in Stefanelli "has not directed that the limiting instruction must also state that the jury may not consider the witness's guilty plea as substantive evidence of defendant's guilt." Id. at 122. We reversed, however, determining the trial court had bolstered the co-defendants' credibility by instructing the jury that a guilty plea would not be accepted by a judge unless the judge was satisfied of the person's guilt of the charge, and because "the only evidence implicating defendant in the gas station theft was provided by the co-defendants who had accepted plea agreements." Id. at 123. We concluded that under those facts, "the limiting instruction must clearly define not only the limited use of the testimony[,] but also the prohibited use of the testimony." Ibid. Here, contrary to Murphy, the trial judge did not bolster the testimony of the co-defendants, and there was other overwhelming evidence of defendant's guilt.

III.

Defendant argues next that this court should remand the matter "for a new sentencing hearing at which the court may reconsider the sentence" previously imposed in light of the fact that defendant will not receive the gap-time credit awarded at sentencing. Defendant contends the record establishes that the trial judge mistakenly believed that defendant would receive gap-time credit against his base term, when under the law, he will not. Defendant requests a remand so that the judge may reconsider his sentence in light of the new information.

At sentencing, after dismissal by merger or because of the Statute of Limitations, defendant was sentenced on the single conviction of purposeful murder to a life term with a thirty-year period of parole eligibility to run concurrent to the pre-existing sentence. Because defendant was serving a sentence on

the conviction for an offense that occurred after the instant crime, the judge awarded defendant 3,247 days of gap-time credit, pursuant to N.J.S.A. 2C:44-5b(2). In imposing sentence, the judge stated:

On Count 2, which charges first[-]degree murder, you are committed to the custody of the [C]ommissioner of the [D]epartment of Corrections for a term of life, during which term you shall not be eligible for parole for a period of 30 years.

I previously found the Graves Act applies. I [am] satisfied under the circumstances that the sentence imposed in this count should run concurrent with the sentence to be imposed on the other counts . . . [i]n the other cases.

. . . .

I [have] considered the standards under [State v. Yarbough], I understand that there are no free crimes. I understand the standards that are imposed.

On the other hand, I must take into consideration the following facts: the fact that the -- these -- this crime occurred a long time ago, that he [was] not getting any jail credit for it, that there [was] a substantial period of time that he [will] be serving in addition, the age at which [he] would otherwise get out is -- the defendant is now 31 years old.

The gap[-]time credit that I [am] going to be giving is not in any way, shape, manner, or form creditable against a 30-year period of parole ineligibility. He [is] going to serve every single day of that 30 years. And he will not be eligible for parole until -- until he [is] 61, at which time the parole board can make its appropriate determination.

I [am] not suggesting in any way, shape, manner, or form that he should -- that he in fact should get parole. The -- the -- Mr. Gordon [the prosecutor], if you [are] still around or your -- your successor can argue to the parole board back -- in -- 30 years from now that they should not in fact grant parole to Mr. Cordero. And I take no position on that one way or the other.

. . . .

Defendant is entitled to 3,247 days of gap[-]time credit, but, again, that does not in any way, shape, manner, or form go against the 30-year period of parole ineligibility. There [is] no jail time credit at all.

Defendant argues that because the sentencing judge stated the gap-time credit would not reduce defendant's parole time, but did not issue a similar statement concerning non-reduction of the base term, "it seems clear that the court believed that the base term would be reduced by the gap-time credit." Defendant contends that had "the court understood its award of almost nine years of gap-time credit was meaningless, . . . it might well have compensated for that . . . loss [of gap-time] by imposing less than a life term." Defendant asserts that because the trial court was wrong on the law, and that mistake may have affected the sentence imposed, the matter should be remanded for a new sentencing hearing, at which time the court may reconsider the sentence.

We are unable to determine from the transcript of sentencing whether the judge believed that defendant would receive gap-time credit against the base term or whether the judge granted the gap-time credit, believing it was mandatory under the statute while knowing defendant would not receive any benefit from the award because of the life term imposed with a thirty-year period of parole ineligibility. Because we are unable to discern the sentencing judge's intention concerning gap-time credit, we grant leave to defendant to move within ninety days of the date of this opinion for re-sentencing with the parties filing appropriate memorandums of law in support of their respective positions. Because the letter from the Department of Corrections was not part of the sentencing record, nor properly presented to this court on appeal, we take no position on the merits of its contents.

IV.

Defendant argues pro se that he was denied due process by the trial court reserving on his pre-trial motion for dismissal of the non-murder charges as barred by the Statute of Limitations. Defendant contends that he was prejudiced by the trial court reserving on the pre-trial motion. He asserts that if the trial court had dismissed the non-murder charges pre-trial, including that of robbery, then the State would have been prohibited from proceeding on the felony murder charge, leaving only the charge of purposeful murder. Defendant argues that by allowing the jury to consider all charges, he was prejudiced by admission of evidence concerning the robbery, weapons, and conspiracy charges, which otherwise would not have been admissible on the single charge of purposeful or knowingly murder. We disagree.

The Statute of Limitations as contained in the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-6, creates an absolute bar to prosecution. State v. Short, 131 N.J. 47, 55 (1993). A motion to dismiss under the statute may be raised before or after trial. R. 3:10-1. If the motion is to be presented prior to trial, counsel is required to advise the court in advance of his or her intention to make the motion at the arraignment/status conference. R. 3:10-2(a). "A motion made before trial shall be determined before the trial memorandum is prepared and the trial date fixed, unless the court, for good cause, orders it deferred for determination at or after trial." R. 3:10-2(b).

Pre-trial motions to dismiss, based on the Statute of Limitations, are treated similarly to a civil motion for summary judgment; that is, if there are genuine issues of material fact, the motion should be denied, and the issue submitted to the jury. State v. Ochmanski, 216 N.J. Super. 240, 244-45 (Law Div. 1987). If the indictment on its face discloses that it was returned beyond the limitation period contained in N.J.S.A. 2C:1-6 for the offenses charged, the motion should be granted unless the State raises a factual dispute concerning the tolling of the statute, e.g., "[t]he limitations in this section shall not apply to any person fleeing from justice." N.J.S.A. 2C:1-6f; see Ochmanski, supra, 216 N.J. Super. at 245.

Here, defendant's motion was not filed until the third day of trial without the benefit of advance notice to the court and State, and was not supported by a brief. Because of the need to research the issue, and to provide the State an opportunity to oppose, the judge reserved on the motion until post-trial. Notwithstanding his non-compliance with the notice requirements of Rule 3:10-2(a), defendant challenges the judge's decision of reserving on the motion. Defendant contends that all the facts necessary to decide the motion were contained in the indictment, and the State never raised any of the exceptions to the running of the Statute of Limitations as contained in N.J.S.A. 2C:1-6. We agree generally, in the interest of justice where all the facts necessary to decide the motion are contained within the four corners of the indictment, and the State does not raise any issues and material fact concerning any of the exceptions of the Statute of Limitations found in N.J.S.A. 2C:1-6, the motion should be decided before commencement of the evidentiary stage of the trial, except if the delay in trial proceedings required to decide the motion would cause a mistrial. Here, however, we are satisfied that the decision to reserve on the motion until post-trial did not cause prejudice to defendant.

Defendant, citing State v. Grey, 147 N.J. 4 (1996), contends that if the trial judge had dismissed the five non-murder charges pre-trial, the evidence concerning the crime of robbery would not have been admitted, thereby precluding the State from proceeding on the felony murder charge. Defendant asserts that all evidence relating to the non-murder charges would have been inadmissible because the evidence would not have been relevant to the remaining charge of purposeful or knowing murder. Assuming the motion had been granted pre-trial, the issue becomes whether or not a defendant may be found guilty of felony murder where the predicate felony was dismissed prior to trial by reason of the expiration of the Statute of Limitations. We answer the question in the affirmative.

Felony murder "is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery . . . and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants." N.J.S.A. 2C:11-3a(3). Because the "constituent element of [felony] murder is the killing of a person in the course of committing a felony[,]" Commonwealth v. Munchinski, 585 A.2d 471, 483 (Pa. Super. Ct. 1990), appeal denied, 600 A.2d 535 (Pa. 1991), and felony murder is not governed by the Statute of Limitations, N.J.S.A. 2C:1-6a, a conviction for felony murder may stand where a defendant has never been indicted, nor convicted, of the underlying predicate felony.

It is not necessary to find the [defendant] guilty of a felony before a finding of [felony] murder. If that were the case, no [felony] murder verdict could be entered without first charging and finding the party guilty of the underlying felony. What is required is that the actor be found guilty of a homicide in the progress of committing a felony with sufficient evidence to establish a felony was in process and the killing occurred. Whether or not the statute of limitations has run on the underlying felony is immaterial, so long as the essential elements of [felony] murder are proven beyond a reasonable doubt.

[Munchinski, supra, 585 A.2d at 483.]

See also State v. Jones, 553 S.E.2d 612, 615 (Ga. 2001), where in discussing the issue the court held:

Contrary to the trial court's analysis, a felony murder conviction is not dependent upon the successful prosecution of the underlying felony. "The mere preclusion of the state's capacity to prosecute the subordinate crime because of a time limitation has no effect upon the question of whether such crime was committed." "The crime of murder is independent of the underlying felony. Therefore, the underlying felony need not be charged as a separate substantive offense, and the fact that it is time-barred does not preclude a prosecution for felony murder." A felony charge "may not be separated into its component parts so that if the Statute of Limitations were a bar to the prosecution of one of the elements of the crime, the major crime, the felony murder charges would also fall."

[(citations omitted).]

Accordingly, we conclude that even if the motion to dismiss the non-murder charges had been decided favorably to defendant prior to trial, the evidence concerning the robbery, conspiracy, and weapon charges would have been admissible on the felony murder charge to prove that the murder took place during the commission of the robbery.

Defendant argues that Grey prohibits his conviction for felony murder when the underlying predicate felony charges are dismissed, and therefore, evidence surrounding the felony charge should not have been admissible. Defendant's arguments are misplaced. Grey involved inconsistent verdicts where the defendant was acquitted of the predicate felony charge of aggravated arson, but convicted of conspiracy to commit aggravated arson and felony murder. The Court concluded that the verdicts were inconsistent because confusing instructions led the jury to believe that it could convict defendant of felony murder if he was guilty of conspiracy to commit aggravated arson, rather than the predicate crime of aggravated arson. Grey, supra, 147 N.J. at 14-15. Accordingly, the Court held that a trial "court should instruct a jury that it should not convict a defendant of felony murder unless it convicts the defendant of the underlying felony." Id. at 17 (footnote omitted). Here, if the motion had been granted pre-trial, we would not be concerned with inconsistent verdicts. The jury would not have been requested to decide whether defendant was guilty of the underlying predicate felony. It would only have been necessary for the State to have proven by sufficient credible evidence beyond a reasonable doubt that the murder took place during the commission of the felony.

This issue was addressed in State v. Branch, 301 N.J. Super. 307, 329-33 (App. Div. 1997), rev'd on other grounds, 155 N.J. 317 (1998). In Branch, defendant was convicted of felony murder, aggravated manslaughter, and weapon offenses. Because defendant was acquitted of the underlying predicate charges of three separate acts of robbery, the trial judge vacated the conviction of felony murder. On appeal, this court, concluding that the jury could have found defendant guilty of robbing a fourth victim, who was not listed in the indictment as one of the three victims of the charged felonies, reinstated the guilty verdict. Ibid. In doing so, we discussed cases from other jurisdictions upholding felony murder convictions where the predicate felony was either not charged or dismissed pre-trial. Id. at 332. The Supreme Court reversed, determining a defendant could not be convicted of felony murder premised upon an uncharged robbery of a victim where the defendant had no prior notice that the robbery was going to be used as a predicate offense for a conviction of felony murder. Id. at 326-27. Here, defendant was on notice of the predicate robbery offense.

We are satisfied after considering defendant's remaining contentions and supporting arguments, and based upon our careful review of the entire record, that they are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm the judgment of convictions and sentences, with leave for defendant to file a motion in the Law Division within ninety days of the date of this opinion for reconsideration of his sentence in accordance with this opinion. We do not retain jurisdiction.

 

The motion also sought dismissal of unrelated charges under two other indictments.

During the sidebar conference, Carter also advised that the suspect in his daughter's murder was apprehended and awaiting trial. Although Carter never discussed the ethnicity of the suspect, the trial judge and defense counsel initially believed that the suspect was, like defendant, a Hispanic male. It was later ascertained that the suspect in the murder of Carter's daughter was not Hispanic; and had committed suicide before trial.

In support of this argument, defendant references a letter dated September 29, 2005, received from the Department of Corrections, Division of Operations, addressed to the Office of the Public Defender, stating: "As we discussed yesterday[,] gap[-]time does not reduce a LIFE sentence. This is the case because the LIFE sentence does not have an associated numerical value for a maximum expiration date as it is based on the mortality of the offender." The letter was not part of the record below, nor did defendant request leave to expand the record on appeal pursuant to Rules 2:5-4 and 2:5-5.

Neither the transcript of sentencing, nor the judgment of conviction states the count with which Count Seven was merged. Because the only conviction remaining after the dismissal of the other convictions was Count Two, we assume that the intent of the sentencing judge was to merge Count Seven with Count Two. Although defendant does not raise this issue on appeal, he requests in fn 1 to his brief that this court amend the judgment of conviction to reflect that all five non-murder counts were dismissed as time barred, rather than only Counts Five and Six, as presently reflected in the judgment of conviction with Counts One, Three, and Four being dismissed by merger. We decline defendant's invitation for procedural and substantive reasons. Procedurally, the issue was not raised under a point heading. See Pressler, Current N.J. Court Rules, comment 1 on R. 2:6-2 (2006) ("The requirement that legal issues be argued under point headings obviously forecloses the raising of issues merely by footnote.") Substantively, we are satisfied defendant did not suffer any prejudice by the trial court's actions, because N.J.S.A. 2C:1-8a requires that "[w]here offenses merge, the merged offense must be vacated, and a judgment of conviction may be entered only for the surviving offense." State v. Gonzalez, 241 N.J. Super. 92, 101 (App. Div. 1990) (Skillman, concurring in part and dissenting in part), rev'd. on dissent, State v. Gonzalez, 123 N.J. 462 (1991).

The base term for murder ranges from thirty years to life. N.J.S.A. 2C:11-3b(1). At the time that this offense occurred, murder carried a mandatory thirty-year parole disqualifier. Ibid. Effective June 29, 2001, murder carries an 85% term of parole ineligibility. N.J.S.A. 2C:43-7.2d(1).

Pursuant to N.J.S.A. 2C:11-3b(1), a defendant convicted of the crime of murder "shall be sentenced, except as provided in subsection c. of this section, by the court to a term of 30 years, during which the person shall not be eligible for parole, or be sentenced to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole."

(continued)

(continued)

33

A-5849-02T4

August 15, 2006

 


Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.