STATE OF NEW JERSEY v. ORLANDO RICHARDSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6299-03T46299-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ORLANDO RICHARDSON,

Defendant-Appellant.

_________________________________________________

 

Submitted November 15, 2005 - Decided January 19, 2006

Before Judges Axelrad and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

I-03-03-0349.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Robert D. Van

Pelt, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County

Prosecutor, attorney for respondent

(Simon Louis Rosenbach, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Orlando Richardson of second- degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1, contrary to the provisions of N.J.S.A. 2C:5-2 (Count One). He has appealed from that conviction, as well as from his sentence of seven years in state prison, subject to the parole disqualification provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, Richardson raises the following issues:

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AND THEREFORE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO WARRANT A CONVICTION OF THE CRIME CHARGED.

POINT II

DEFENDANT'S RIGHTS GUARANTEED BY THE CONFRONTATION AND DUE PROCESS CLAUSES OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION WERE TRANSGRESSED BY THE COURT'S REFUSAL TO ALLOW ORLANDO RICHARDSON'S DEFENSE COUNSEL TO ADEQUATELY CROSS EXAMINE A STATE'S WITNESS.

POINT III

THE SENTENCING COURT DID NOT APPLY CORRECT LEGAL PRINCIPLES IN EXERCISING ITS DISCRETION WHEN IT DID NOT SENTENCE ORLANDO RICHARDSON TO A TERM PURSUANT TO N.J.S.A. 2C:44-1(f)2.

We affirm.

Richardson was indicted with co-defendants Zakari N. Elhamri (Zak) and Sean Wallace, and was tried together with Wallace, whose appeal was scheduled before us simultaneously with that of Richardson. The evidence at trial was sufficient to establish that the three defendants met victim Miguel Valentine Tursty, by prearrangement, at Zak's apartment complex, where he was taken behind a building and robbed at gunpoint of one-hundred dollars by Wallace, who handed the money to Richardson. During the course of the robbery, Tursty was hit in the head by Zak and threatened by Richardson who, according to Tursty, was "going crazy," and stating repeatedly that he wanted to shoot Tursty in the foot. However, he was admonished by Wallace, who stated: "[W]e come here for the money."

Thereafter, Richardson drove a car to the site of the robbery, Tursty was forced inside by Wallace, and Tursty was taken at gunpoint to a Red Roof Inn, where Tursty was occupying a room with his girlfriend, in order to obtain additional money. Further threats were uttered during the course of the ride by Richardson, who stated that he wanted to shoot Tursty "from around the back." At the motel, Tursty sought to telephone a friend named Jean Carlos Abreu in an adjoining room where the money was allegedly located. When his efforts proved unsuccessful, Tursty was returned to the car. After being driven for some distance by Richardson, Tursty received a call from Abreu on his cell phone, and the four men returned to the motel. Once there, Zak and Wallace accompanied Tursty to his room, while Richardson remained in the car. After an altercation between Zak and Abreu at the room's entrance, Zak and Wallace returned to the car and were driven off by Richardson. Shortly thereafter, they were spotted by the police, who had been called to the scene following a report of a man with a gun. After a pursuit, the car was stopped, and Zak and Richardson were arrested. Wallace escaped during the course of the pursuit, but was later apprehended. Neither guns nor money was found in the car driven by Richardson, or on him or Zak.

I.

On appeal, Richardson first argues that the court erred in failing to grant his motion for acquittal at the close of the State's case and at the conclusion of the evidence, because "[t]he State did not introduce one scintilla of evidence which could establish the conspiracy charge against the defendant, Mr. Orlando Richardson."

We disagree. Testimony provided by the victim, Tursty, was sufficient to establish that he met defendants at the request of either Zak or Wallace at Zak's apartment complex. At that time, the three men, who had previously been driven to the location by Richardson and remained seated together in a car, exited the car and took Tursty to the back of Zak's building where the armed robbery occurred. During its course, according to Tursty, Richardson threatened to shoot Tursty in the foot, but was dissuaded by Wallace, who stated that they had not come to shoot their victim. Rather, "we come here for the money." After the robbery took place, Tursty testified that Wallace gave the money that he had taken from Tursty's pocket to Richardson.

We find this evidence, when viewed in a light most favorable to the State, to have been adequate to establish the existence of an agreement between Zak, Wallace and Richardson to commit first-degree armed robbery, and the fulfillment of that agreement. N.J.S.A. 2C:5-2a(2) and 2C:15-1b. The combined purpose of the three men was established by their request that Tursty meet them at the apartment location, their joint presence upon Tursty's arrival in a car that had been driven there by Richardson, the fact that all three defendants led Tursty behind the building, and their combined actions during the course of the robbery, including the use of one or more handguns to strike and threaten Tursty with immediate bodily harm. Evidence that defendants' purpose was joint and pre-determined was supplied as well by Wallace's comment to Richardson that they had come for Tursty's money. Richardson's acquiescence in the scheme was demonstrated by his presence before and during the robbery's course and by his acceptance of Tursty's money from Wallace at the completion of the robbery.

Thus, we find that proof was presented of an agreement between Richardson, Wallace and Zak to jointly engage in conduct that constituted the crime of first-degree robbery, N.J.S.A. 2C:5-2a(2), and the commission of that crime by being armed with and threatening the immediate use of a deadly weapon during the course of the commission of a theft upon Tursty. N.J.S.A. 2C:15-1b. Richardson's motions for a judgment of acquittal were therefore properly denied. State v. Reyes, 50 N.J. 454, 458-59 (1967). Given the evidence that we have described, we find it unnecessary to address the purpose of defendants' subsequent trip with Tursty to the Red Roof Inn, the conduct occurring there, or Richardson's participation therein.

II.

Richardson next argues that his right to cross-examine Tursty was improperly curtailed by the court. Again, we disagree, finding that it was within the court's discretion to instruct counsel to "move along" with cross-examination of that witness and to limit the length of that cross-examination. The Confrontation Clause of the Sixth Amendment does not prohibit a trial judge from imposing limits on the cross-examination of a prosecution witness.

On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.

[State v. Cuni, 303 N.J. Super. 584, 608 (App. Div. 1997) (quoting Delaware v. VanArsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986)), certif. denied, 152 N.J. 12 (1997).]

See also N.J.R.E. 611(a).

Although Tursty, as the victim, was undoubtedly a significant witness, his status did not serve to render limitless his cross-examination, which we find to have been in many respects repetitive and to have included lengthy exploration of matters of tangential or no relevance to the issue of Richardson's guilt of the crimes charged. Our review of the record satisfies us that counsel was afforded an ample opportunity to explore relevant areas of inquiry and any available defenses. Further, we find that Richardson has failed to identify any pertinent subjects that counsel was precluded from exploring. We thus find no abuse of discretion on the part of the court in imposing reasonable limitations on defense counsel's examination.

III.

As a final matter, Richardson challenges the sentence of seven years of imprisonment imposed upon him -- a sentence that then constituted the presumptive term for the second-degree crime charged. N.J.S.A. 2C:44-1f(1)(c). Richardson claims that he should instead have been sentenced as a third-degree offender to a four-year term pursuant to N.J.S.A. 2C:44-1f(2).

In support of this argument, Richardson asserts that the court improperly relied upon aggravating factors 3 (the risk that defendant would commit another offense) and 6 (the extent of his prior record), N.J.S.A. 2C:44-1a(3) and (6), while erroneously failing to consider mitigating factors 8 (that defendant's conduct was the result of circumstances unlikely to recur) and 11 (that defendant's imprisonment would entail excessive hardship on defendant's three children). N.J.S.A. 2C:44-1b(8) and (11).

We find no merit to this argument. The court's reliance on aggravating factors 3 and 6, as well as factor 9 (the need for deterrence), which Richardson does not challenge, was properly based upon defendant's criminal record, which included juvenile charges and, as an adult, two convictions for indictable crimes and a violation of probation. The fact that defendant's prior crimes were non-violent in nature does not render them de minimis for sentencing purposes. We note as well that defendant was on probation when he committed the crimes that are the subject of this appeal.

We also find that the court was within its discretion in finding the absence of any mitigating factors, since Richardson's participation in the events surrounding the robbery was substantial, and there was no evidence in the record to suggest that such participation constituted an aberrant deviation from otherwise lawful behavior. Further, we note that Richardson did not have custody of any of his children. His pre-sentence report discloses a history of domestic violence against the natural mother of the children, including violation of a final restraining order.

We find that the court in imposing sentence complied with the legal principles articulated in State v. Roth, 95 N.J. 334, 364-66 (1984), and that imposition of the seven-year presumptive sentence for a second-degree crime in no respect shocked our judicial consciences, State v. Roach, 222 N.J. Super. 122, 130 (App. Div. 1987), certif. denied, 110 N.J. 317 (1988), thus warranting reversal.

Richardson's conviction and sentence are affirmed.

 

Count One of the indictment also charged Richardson with conspiracy to commit fourth-degree assault, contrary to N.J.S.A. 2C:12-1b(4). However, that charge was withdrawn by the State during trial.

The indictment contained six counts, only the first of which pertained to Richardson.

See State v. Wallace, No. 6260-03 (App. Div. January __, 2006). At the time of trial, Elhamri was a fugitive.

Richardson's pre-sentence report discloses a conviction for aggravated assault arising out of an incident on November 15, 2001. However, at the sentencing hearing, defense counsel contested the basis, but not the existence of that conviction.

(continued)

(continued)

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A-6299-03T4

January 19, 2006