STATE OF NEW JERSEY v. ANGEL CALDERON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6528-04T41136-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL CALDERON,

Defendant-Appellant.

________________________________

 

Submitted September 16, 2008 - Decided

Before Judges Collester and Grall.

On appeal from the Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

05-02-0199-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Diane Toscano, Assistant Deputy

Public Defender, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Joel S. Silberman,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Tried to a jury, defendant Angel Calderon was found guilty of manslaughter, contrary to N.J.S.A. 2C:11-4b(1), as a lesser included offense of the charge of murder; possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5(b); possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a); and aggravated assault, contrary to N.J.S.A. 2C:12-1(b). The sentencing judge granted the State's motion for an extended term and sentenced defendant to twenty years with eighty-five percent parole ineligibility for manslaughter; a consecutive term of ten years with five years parole ineligibility for second-degree unlawful possession of a weapon; and concurrent terms on the remaining convictions.

The following testimony was adduced at trial. Shortly before midnight on October 1, 2004, about 200 to 300 custom car enthusiasts and street racers gathered at the Hudson Mall parking lot adjacent to R&S Strauss, Dunkin Donuts and Burger King on Route 440 in Jersey City.

A group from Newark consisted of Craig Cohen, his girlfriend, Kristen Reynolds, and friends including Gregory Tavarez, Victor Tavarez, David Guevara, Joaquin Oquendo, Laura Aviles, the victim, Jose Santos, as well as a number of unnamed persons. The Newark group arrived at the 440 lot in various vehicles. Craig and Kristen arrived at the 440 lot in Craig's vehicle. Jose, David, Joaquin and Laura arrived at the 440 lot in David's blue Honda Civic and Gregory and Victor arrived in Victor's green four-door Honda Civic. A group from Perth Amboy included defendant, Carlos Aponte, Ivan Rios, and others. Some of this group arrived in Aponte's white four-door Honda Civic.

The Newark group believed that some of the group from Perth Amboy were involved in a burglary at Craig's business, Junior Auto, in New Brunswick and stole about $10,000 in auto parts. A confrontation took place which soon led to violence with anywhere from fifteen to eighteen persons engaging in fistfights. After being hit in the face by someone from the Newark group, Aponte got into his car and tried to leave. As he was speeding out of the parking lot, he lost control and rammed into a concrete barrier. He was injured and taken to a hospital in another car.

Craig's friends from Newark then began stripping parts from Aponte's customized Honda Civic. A short time later Craig saw a black Acura Integra arrive driven by a man he knew as "White Mike," later identified as Mike Wagner. As the black Acura drove by, Wagner leaned out of the window and told Craig that he was going to kill him. When he saw Mike hand defendant a black object, Craig and Kristen left and heard gunshots as they were driving away.

Gregory Tavarez testified that he saw the four-door Acura Integra driven by a white man pull into the parking lot. The man passed a gun wrapped in a white towel to the defendant. Defendant then walked slowly toward the Newark group and opened fire. The crowd scattered. Defendant then fired at a fleeing blue Honda driven by Jose Santos, causing it to crash into the Burger King. Defendant next fired three shots at a car driven by Gregory's brother, Victor. Then defendant then turned and aimed the gun directly at Gregory from about ten feet away and said, "Come over here before I shoot your ass." Gregory raised his hands in the air and said he "didn't see nothing." Defendant got into the black Acura Integra driven by Wagner and sped off. Moments later, Gregory heard screaming and was told that Jose Santos had been shot and killed.

Joaquin Oquendo, David Guevara, and Laura Aviles were in the blue Honda Civic with Jose Santos when he was shot. Oquendo testified that he was hanging out with Santos near the blue Honda Civic when he told him to get in the car because someone had a gun. He said that as they were driving away, Santos slumped over the wheel, and they crashed into the exterior wall of the Burger King. Guevara testified that as they were driving away, he saw a Hispanic male pointing a gun at Santos, who then slumped forward.

Ray Hankins testified that he had known defendant and Wagner for a couple months before the crime when defendant was staying at Wagner's great aunt's house in Linden. Hankins stated that on October 1, 2004, he and Wagner had been driving around Woodbridge in Wagner's black Acura Integra when Wagner received a phone call. Wagner told him the phone call was from defendant and that "a guy named Craig just had [defendant] jumped over at the Dunkin' Donuts so we were to head over there and help him out, go fight these kids." Hankins testified that Wagner made a quick stop at his house in Linden and returned a minute or so later with a gun wrapped in a towel. When they arrived at the parking lot, defendant ran over to the car and took the gun from Wagner. Defendant then ran towards a crowd of people and started shooting. Hankins testified he saw defendant shoot three or four times at a blue Honda Civic which crashed into a wall. Defendant then ran to Wagner's black Acura Integra, and the three men drove to Wagner's house. Hankins explained that he had lied to investigators until they had evidence placing him at the scene of the shooting because he was "trying to stay out of trouble."

About a week after the crime, Wagner told police that the gun was behind his house in Linden. Expert testimony indicated that spent shell casings found at the scene had been fired from that gun, and that a damaged bullet found in the parking lot could have been fired from the same gun.

Defendant did not testify and called no witnesses. Appealing the jury verdict and his sentence, defendant presents the following arguments:

POINT I - THE JURY WAS INFORMED THAT DEFENDANT'S PHOTO WAS OBTAINED FROM A LAW ENFORCEMENT AGENCY; THAT IT WAS WELL-KNOWN THAT DEFENDANT AND HIS GROUP HAD COMMITTED MULTIPLE CRIMES; AND THAT COHEN SUSPECTED THAT DEFENDANT HAD STOLEN $10,000 WORTH OF EQUIPMENT FROM HIS BUSINESS. THIS INFORMATION, INADMISSIBLE UNDER N.J.R.E. 404(b), DENIED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 1, 9, 10. (Raised in part below).

POINT II - BY EXPRESSING HIS OPINION THAT APONTE AND OTHER STATE'S WITNESSES WHO IDENTIFIED DEFENDANT WERE TELLING THE TRUTH, DETECTIVE KOLITCH DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 1, 9, 10.

POINT III - BY MOLDING THE JURY CHARGE ONLY TO THE STATE'S VERSION OF EVENTS, THE TRIAL COURT BECAME AN ADVOCATE FOR THE STATE AND DIRECTED THE VERDICT IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PAR. 1, 9, 10. (Not raised below).

POINT IV - BY ERRONEOUSLY ADMITTING HEARSAY TESTIMONY UNDER THE CO-CONSPIRATOR EXCEPTION, THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND HIS RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947), ART. I, PAR. 1, 9, 10.

POINT V - WHEN THE PROSECUTOR TOLD THE JURY THAT, TO ACQUIT DEFENDANT, THEY MUST COMPLETELY DISREGARD THE TESTIMONY OF COHEN, THE TAVAREZ BROTHERS, HANKINS, AND ALL OF THE FORENSIC EVIDENCE, HE MISSTATED THE LAW AND DENIED DEFENDANT A FAIR TRIAL. (Not raised below).

POINT VI - THE TRIAL COURT ERRED IN DISCOURAGING THE JURY'S REQUEST FOR READBACK OF THE TESTIMONY OF FOUR KEY WITNESSES. (Not raised below).

POINT VII - DEFENDANT DID NOT TESTIFY. THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY THAT THEY COULD NOT CONSIDER DEFENDANT'S COURTROOM DEMEANOR IN THEIR DELIBERATIONS, DENIED DEFENDANT A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 1, 9, 10. (Not raised below).

POINT VIII - THE DEFENDANT'S CONVICTIONS FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD MERGE INTO HIS CONVICTIONS FOR RECKLESS MANSLAUGHTER AND AGGRAVATED ASSAULT. (Not raised below).

POINT IX - DEFENDANT'S CASE MUST BE REMANDED FOR RESENTENCING. THERE WAS NO STATEMENT OF REASONS TO SUPPORT THE IMPOSITION OF CONSECUTIVE SENTENCES; STATE V. PIERCE REQUIRES A REMAND, AND THE INDIVIDUAL SENTENCES ARE EXCESSIVE.

A. THE CASE MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE V. PIERCE.

B. THE CASE SHOULD BE REMANDED FOR RESENTENCING, AND FOR A STATEMENT OF REASONS, PURSUANT TO STATE V. YARBOUGH, 100 N.J. 627 (1985).

C. THE SENTENCES IMPOSED ARE EXCESSIVE BECAUSE OF IMPROPER APPLICATION OF AGGRAVATING AND MITIGATING FACTORS.

Defendant's arguments I through VII are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3. We make only the following brief comments.

As to Point I, we find no violation of N.J.R.E. 404(b) in the testimony of Sergeant Kolitch that the photographs used for the purpose of identification were obtained from another law enforcement agency. Moreover, following objection by defense counsel it was agreed that the judge would give a special charge to the jury that photographs in possession of law enforcement come from a variety of sources unconnected with criminal activity. The charge was given during jury instruction and was sufficient to ameliorate any prejudice. The remainder of the charge was sufficient and proper. We find no error.

We agree with defendant that the conviction for unlawful possession of a weapon should merge into the conviction for reckless manslaughter.

The doctrine of merger is rooted in the established principle that a defendant who has committed only one offense cannot be punished as if for two. State v. Dillihay, 127 N.J. 42, 46 (1992); State v. Cole, 120 N.J. 321, 325-26 (1990); State v. Davis, 68 N.J. 69, 77 (1975). The question whether to merge convictions implicates a defendant's substantive constitutional rights. Dillihay, supra, 127 N.J. at 46; Cole, supra, 120 N.J. at 327; State v. Truglia, 97 N.J. 513, 522 (1984); State v. Best, 70 N.J. 56, 61 (1976); Davis, supra, 68 N.J. at 77. Our Supreme Court has eschewed a mechanical approach to merger issues in favor of a flexible approach in which a court considering whether to merge convictions should focus on the elements of the crime, the Legislature's intent in enacting the statutes, and the specific facts of each case. Dillihay, supra, 127 N.J. at 47; Cole, supra, 120 N.J. at 327.

Generally, a charge of possession of a weapon for an unlawful purpose must merge into the greater offense unless: (1) the defendant was charged in the indictment with possession of the weapon with a broader unlawful purpose, either generally or specifically, than using the weapon to kill or assault the victim of the greater offense, (2) the evidence supports a finding that the defendant had a broader unlawful purpose, (3) the judge instructed the jury concerning the difference between possession with the specific unlawful purpose of using the weapon against the victim of the greater offense and a broader unlawful purpose, and (4) the verdict expressed the jury's conclusion that the defendant had a broader unlawful purpose. State v. Williams, 213 N.J. Super. 30, 36 (App. Div. 1986), certif. denied, 107 N.J. 104 (1987). In the absence of a special verdict by the jury finding that the unlawful purpose was broader than the substantive offenses for which the defendant was convicted, possession of the firearm with a purpose to use it unlawfully must merge into one of the substantive offenses for purposes of sentence. State v. Loftin, 287 N.J. Super. 76, 113 (App. Div.), certif. denied, 144 N.J. 175 (1996); State v. Lado, 275 N.J. Super. 140, 157 (App. Div. 1994). Therefore, we vacate the sentence for possession of a weapon for an unlawful purpose and remand for re-sentence on the conviction for manslaughter.

In sentencing defendant the judge imposed an extended term based on prior convictions and the maximum extended sentence for reckless manslaughter. In light of defendant's prior convictions, he was eligible for a discretionary extended term sentence in this case. N.J.S.A. 2C:44-3(a). State v. Pierce, 188 N.J. 155, 162 (2006); State v. Dunbar, 108 N.J. 80, 87-88 (1987). After so determining, the judge found as aggravating factors the following:

This court does find aggravating factor one. The nature and circumstances of the offense. And the way this court views that is that these victims were innocent victims. They were not victims that had hurt this defendant in any way, threatened this defendant, or in fact, had done anything wrong. And based upon that, I believe the nature and circumstances of the offense and the role of the actor in it is applicable as an aggravating factor.

The risk defendant will commit another offense is clearly an aggravating factor that this Court finds. The Court would note, and I am sure the record will bear, and since I have a videotaped courtroom that any Appellate Division reviewing this matter can surely look and observe the actions of the defendant during trial, taunting the victim's family until this Court was aware of same and advised counsel that his client was doing that.

Based upon that, I clearly [find] that the aggravating factor three is present, the risk that defendant will commit another offense.

The defendant as the prosecution pointed out, started his criminal record at the early age of 14, and eventually accelerated to more and more serious offenses. A man of 24 having ten arrests, and this would be four indictable convictions. He clearly has an extensive and serious criminal record.

And surely the need to deter the defendant and any others who are cavalier about their actions from further engaging in conduct, aggravating factor nine is present.

I do find the aggravating factors far outweigh the mitigating factors [of] which I could not find any in this particular case . . . .

And I did I found one, three, six and nine.

We find that the Court erred in its assessment that aggravating factor one was applicable because "these victims were innocent victims." Lack of provocation by a victim does not constitute an aggravating factor.

We remand to vacate the sentence for conviction of unlawful possession of a weapon and for merger of that conviction into the conviction of manslaughter for the purposes of sentence. We further remand for re-sentence consistent with Pierce, supra, 188 N.J. at 170; State v. Thomas, 188 N.J. 137, 149-54 (2006); State v. Natale, 184 N.J. 458, 481 (2005).

Affirmed in part. Reversed and remanded for re-sentence.

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A-1136-06T4

April 6, 2009