STATE OF NEW JERSEY v. DANIEL LUNA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6250-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL LUNA,

Defendant-Appellant.

_____________________________________

 

Submitted December 14, 2005 - Decided June 9, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen County,

Indictment No. 01-03-751.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Gilbert G. Miller,

Designated Counsel, of counsel and on the

brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Daniel Luna was tried in absentia by a jury and convicted of two counts of first-degree armed robbery, in violation of N.J.S.A. 2C:15-1; one count of second-degree possession of a handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; two counts of third-degree criminal restraint, in violation of N.J.S.A. 2C:13-2a; one count of second-degree armed burglary, in violation of N.J.S.A. 2C:18-2; one count of third-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b; one count of fourth-degree possession of hollow nose bullets, in violation of N.J.S.A. 2C:39-3f; and one count of fourth-degree possession of a radio to intercept emergency communications while in the course of committing a crime, in violation of N.J.S.A. 2C:33-22.

The trial court imposed the following sentence: on the robbery counts, two concurrent terms of fifteen years, with an 85% period of parole ineligibility, and five years of mandatory parole supervision, pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2; on the two criminal restraint counts, a term of four years, concurrent to each other, but consecutive to the fifteen-year term for the robberies; on the second-degree armed burglary count, a seven-year term, concurrent with the fifteen-year term for the robberies; on the unlawful possession of a handgun count, a four-year term, concurrent with the criminal restraint, but consecutive to the fifteen-year term for the robberies; on the two fourth-degree convictions, a term of eighteen months, concurrent with the fifteen-year term for the robberies. The court also imposed the mandatory fines and penalties.

We summarize the salient facts of the case from the evidence presented at trial.

I

The Commission of the Crime

In December 2000, defendant and five other men decided to forcefully break into the home of a woman named Fatima Vazquez, with the intent of robbing her of money she allegedly kept in her house in Ridgefield as part of an illegal money laundering operation. The six men drove from the Bronx to New Jersey in two separate cars. Angel Roman and Ruben Taveras occupied an Acura, while defendant, James Hiciano, Elvio Rosario and Lorenzo Rosario, traveled in a white Honda.

The plan was for defendant to pretend to be a flower delivery person. Defendant and Elvio Rosario, who was armed with a handgun given to him by Angel Roman, were to walk up to the house, ring the bell, and once the door was open, force their way inside. The other members of the group remained outside, either as lookouts or as drivers for the getaway cars. When the housekeeper opened the door, Elvio Rosario took out the weapon and pushed her into the house.

At this time, William Walliser, an off-duty Union City police officer who lived in the area, became suspicious when he heard the sound of a loud car muffler. When he looked around for the source of the noise, he spotted the assailants' white Honda bearing New York State license plates. The vehicle was parked directly across the street from Walliser's house. As if responding to his observations, the Honda moved up to the intersection of Morningside Lane and Borough Lane, an area known to Walliser as a high crime location. He also observed three Hispanic men exit the Honda and walk in the direction of a house that had been burglarized.

Concerned that something untoward might be taking place, Walliser telephoned the Ridgefield Police Department and gave a full description of the Honda and its occupants. Sergeant Warren Cassirer and Investigator Jose Brito responded to the scene driving unmarked cars. Walliser gave the two Ridgefield police officers a full briefing on his observations.

In the meantime, defendant and his cohorts remained inside the house, holding the housekeeper and Vazquez's young son at gunpoint in the kitchen. Outside, Investigator Brito approached Ruben Taveras and asked what he was doing in the area, and for his driver's license. Taveras produced a Florida driver's license, and told Brito that he was there to visit "Fatima" at 800 Elm. This immediately raised Brito's suspicions, because he knew that no one by that name lived on Elm.

As the other members of the group heard of the presence of the police, they decided to leave the Vazquez house. Their decision to pile inside the Honda caught Walliser's attention, who in turn advised Sergeant Cassirer. As the five men drove away, Cassirer followed in pursuit, activating the undercover car's emergency lights. When the Honda came to a stop, the driver, Hiciano, produced his driving credentials and responded to Cassirer's questions as to their reasons for being in the area.

While this was taking place, Fatima Vazquez was repeatedly telephoning her home without success. Vazquez contacted her office and asked the secretary to call her house. The secretary called Vazquez back within a few minutes and indicated that she was able to reach the residence and informed Vazquez as to what had happened. After speaking to her secretary, Vazquez called the Ridgefield Police Department to report that five men had invaded her house with a gun. The responding officer met the housekeeper, who along with Vazquez's son, described a harrowing ordeal of several men forcing their way into the house and holding them at gun point while they ransacked the house. She specifically mentioned that one of the men had flowers.

The house was in disarray. The drawers in the bedroom had been removed, and jewelry was scattered on the bed. The police discovered a bouquet of flowers in the foyer, a pair of work gloves in a plastic bag, and duct tape.

The officer responding to the house then proceeded to Morningside Lane, where Taveras was being detained by Walliser and another off-duty Union City police officer. As the officers were standing by the car, they heard the audio transmissions of a police scanner. Sergeant Cassirer also heard a similar sound emanating from the white Honda. This transmission reported the Ridgefield Police Department's investigation of a home invasion involving five armed Hispanic men.

All five occupants of the car were immediately detained. Defendant, who had been sitting in the right rear passenger seat, had visible bulges in both front pockets. When Investigator Brito asked him about the contents of his pockets, defendant responded "jewelry." He claimed to have found the jewelry in a dumpster. Fatima Vazquez later identified this jewelry as among the pieces of jewelry that had been stored in the box found in her ransacked bedroom.

A police inventory of the contents of both cars detailed a card from a flower shop addressed "To Mrs. Fatima"; a white nylon rope; a pair of cotton gloves; a wool hat with a partial mask; and a DVD player. The Acura contained notes with references to several streets in the area of the crime and a black Radio Shack radio scanner capable of intercepting police radio traffic. After his arrest, Hiciano, when asked about the gun by the police, told the officers that he heard the sound of metal hitting the ground when he stopped the car on Shaler Boulevard and Elm Avenue. Hiciano returned to this area with the officers and they recovered a handgun.

II

Pretrial Proceedings

On April 29, 2002, defendant appeared before the trial court for a scheduled status conference. At this proceeding, the judge addressed defendant directly. As the following colloquy illustrates, defendant acknowledged being aware of the scheduled trial date; of the consequences of a failure to appear; and of his responsibility for communicating with his attorney to keep abreast of any changes in the schedule.

THE COURT: All right.

Now we understand, Mr. Luna, you understand what the trial date is?

MR. LUNA: Yes.

THE COURT: Your trial date is July 16th. If you are not here, we will proceed without you. You understand that?

MR. LUNA: I understand.

THE COURT: Your trial may take place later, depending on what happens in May. You are given notice, and if you are not here, it's your duty to call your attorney, and find out what the new date is. Do you understand that?

MR. LUNA: I understand.

Defendant failed to appear on July 16, 2002, and the court issued a warrant for his arrest. The trial date was then rescheduled for August 13, 2002. The trial began on August 13, 2002, without defendant. Later that afternoon, after checking his voicemail messages, the prosecutor learned that defendant had been arrested on August 9, 2002 in New York City and charged with possession with intent to distribute cocaine. The prosecutor also learned that defendant had been in custody in New York since his arrest and was being held on a prison barge on Rikers Island.

The next day, on the morning of August 14, 2002, the prosecutor informed the court as to defendant's whereabouts and requested that in light of defendant's fugitive status, the court should go forward with the trial. This prompted the following exchange between the trial judge and defendant's counsel:

THE COURT: . . . . Now, the Prosecutor said there was a trial date scheduled for July 16 [a]nd your client had actual notice.

[DEFENSE COUNSEL]: Yes.

THE COURT: He didn't appear on July 16.

[DEFENSE COUNSEL]: No, he didn't.

THE COURT: From then to the present has he made any effort to contact you?

[DEFENSE COUNSEL]: No.

THE COURT: Have you made any effort to contact him?

[DEFENSE COUNSEL]: Just a letter I sent out. I had my secretary try to contact him by phone.

THE COURT: Was the letter returned that you sent to him?

[DEFENSE COUNSEL]: No, your Honor.

THE COURT: Where was it sent? Does he have his own apartment?

[DEFENSE COUNSEL]: No. He lives with his mother and father.

THE COURT: He lives with his parents?

[DEFENSE COUNSEL]: Yes.

THE COURT: And you also sent a letter to the parents?

[DEFENSE COUNSEL]: Yes.

THE COURT: And you also called the parents?

[DEFENSE COUNSEL]: I presume the secretary called.

THE COURT: You told her to call?

[DEFENSE COUNSEL]: Yes.

THE COURT: Did you ask her if she called?

[DEFENSE COUNSEL]: This issue came up last night. I haven't spoken to her this morning.

THE COURT: From that date, from the date the July 16th trial was scheduled, which had to be set well before that time, perhaps in June or May, [the Judge who presided over the status conference] gave a July 16 date.

[PROSECUTOR]: That trial date was actually set on April 29th, your Honor.

THE COURT: Oh. April 29th. So on April 29th was your client in court on April 29th?

[DEFENSE COUNSEL]: Yes.

THE COURT: And the Judge gave July 16 as a trial date?

[DEFENSE COUNSEL]: Yes, your Honor.

At the end of this exchange, defense counsel emphasized that defendant had been "very conscientious" by attending all of his prior court appearances. He argued that because defendant was taken into custody in New York "on the eve of trial," he did not have a meaningful opportunity to notify the court and counsel of his whereabouts.

The court rejected these arguments, finding inexcusable defendant's failure to appear on July 16, 2002, and his failure to apprise his counsel and the court of his whereabouts prior to his arrest on August 9, 2002. The trial then proceeded without defendant's participation.

III

Defendant now appeals raising the following arguments:

POINT I

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE PRESENT AT CRITICAL STAGES OF THE TRIAL. U.S. CONST., Amend. VI; N.J. CONST., ART. I, PAR. 10.

POINT II

IDENTIFICATIONS OF DEFENDANT WERE IMPROPERLY ADMITTED IN VIOLATON OF THE HEARSAY RULE. U.S. CONST., AMEND. VI; N.J. CONST. ART. I, PAR. 10.

POINT III

INADMISSIBILE HEARSAY TESTIMONY REGARDING CRITICAL DETAILS OF THE ROBBERY WAS ADMITTED. U.S. CONST., AMEND. VI; N.J. CONST., ART. I, PAR. 10. (Not Raised Below)

POINT IV

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We reject these arguments and affirm. We are satisfied that defendant's arguments in Points I, II, and III are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments in the interest of clarity.

On the argument raised in Point I, as both sides recognize, State v. Givens, 353 N.J. Super. 280, 287-89 (App. Div. 2002), was the controlling authority for the trial court's decision to proceed with the trial without defendant. In Givens, defendant was convicted in absentia, after she failed to appear on the day of trial. Thereafter, the trial court granted defendant's motion for a new trial based on defense counsel's certification "detailing the defendant's arrest and continued incarceration in New York." Id. at 284. The court found that defendant's absence from trial had not been voluntary within the meaning of R. 3:16(b). Ibid.

We granted the State's motion for leave to appeal, and reversed the trial court's ruling. In so doing, we held that:

While incarceration is an obvious and powerful fact to be considered giving rise to a factual presumption against voluntary waiver, it should not foreclose the hearing judge from further inquiry as to the reason notification was not made, whether reasonable efforts for notification were possible, what, if any, action was taken by or on behalf of the defendant, and whether the defendant understood or was capable of understanding that he or she had a duty of notification. Since the defendant neither certified [n]or testified regarding any of these matters, we reverse the order granting a new trial and remand for [a] further hearing pursuant to R. 3:20-2.

[Id. at 289.]

Applying these legal principles to the question before us here, we are satisfied that the trial court's decision was within a reasonable exercise of discretion in finding defendant's failure to appear on the day of trial, as constituting a voluntary waiver of his appearance under Rule 3:16(b). Defendant was personally notified on April 29, 2002, of his obligation to appear on July 16, 2002, and of his continued duty to communicate with his attorney to keep abreast of any changes in the court's schedule. His failure to honor both of these obligations was unrelated to his incarceration on August 9, 2002.

With respect to defendant's sentence, we are compelled to remand the matter for a new sentencing hearing for the court to consider and apply the guidelines articulated by the Supreme Court in State v. Natale, 184 N.J. 458 (2005). At this hearing, the State will also have the opportunity to raise the issues reflected in footnote 3 in its appellate brief, concerning the applicability of NERA and the Graves Act, N.J.S.A. 2C:43-6c, to the first-degree robbery convictions.

Defendant's conviction is affirmed. The sentence imposed is vacated and the matter is remanded for a new sentencing hearing.

 

Defendant was originally indicted on two counts of second-degree kidnapping in violation of N.J.S.A. 2C:13-1b. On the second day of trial, the court granted the State's motion to amend these counts to third-degree criminal restraint.

The trial judge was not the same judge who presided over the status conference.

(continued)

(continued)

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A-6250-03T4

June 9, 2006