STATE OF NEW JERSEY v. LISANDRO TAVERAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3139-07T43139-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LISANDRO TAVERAS,

Defendant-Appellant.

___________________________________________________________

 

Submitted May 28, 2009 - Decided

Before Judges Parrillo and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-12-2548.

Michael J. Nedick, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Vered Adoni, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lisandro Taveras appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty, in absentia, of first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; second-degree theft, N.J.S.A. 2C:20-3; third-degree criminal restraint, N.J.S.A. 2C:13-2(a); third-degree terroristic threats, N.J.S.A. 2C:12-3(b); second-degree possession of a handgun with the purpose to use it unlawfully against another, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Nearly seven years after the jury's verdict, defendant was apprehended and sentenced to sixteen years in prison on the robbery charge, 85% of which was to be served without parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. All other sentences were ordered to run concurrently, and the appropriate financial penalties were imposed.

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED BY DIRECTING THE TRIAL TO PROCEED IN ABSENTIA, AND BY ADVISING THE JURY THAT APPELLANT WAS NOT PRESENT BECAUSE OF A BUSINESS COMMITMENT.

POINT II

THE TRIAL COURT ERRED WHEN IT PERMITTED WITNESSES TO TESTIFY THAT THE TWO COOPERATING DEFENDANT[]S IDENTIFIED APPELLANT AS A PARTICIPANT IN THE CHARGED CRIMES DURING THEIR [POST-]ARREST [] STATEMENTS, AND FAILED TO PROVIDE A LIMITING INSTRUCTION WITH REGARD TO THE USE OF SUCH TESTIMONY, AND PROHIBITED CROSS-EXAMINATION OF ONE OF THE ACCOMPLICES CONCERNING THE ELEMENTS UNDERLYING A PRIOR CONVICTION.

POINT III

TRIAL COUNSEL'S FAILURE TO OBJECT TO APPELLANT'S TRIAL IN ABSENTIA AND THE COURT'S COMMENTS TO THE JURY RELATING THERETO, HIS FAILURE TO MOVE FOR A NEW TRIAL PRIOR TO SENTENCING BASED UPON THE DEFENDANT'S NON-APPEARANCE AT TRIAL, AND HIS FAILURE TO OBJECT TO IMPROPER BOLSTERING TESTIMONY THAT THE TWO COOPERATING CO-DEFENDANTS HAD MADE OUT OF COURT STATEMENTS IDENTIFYING APPELLANT AS ONE OF THE PARTICIPANTS IN THE CRIME, AND TO REQUEST A LIMITING INSTRUCTION WITH REGARD TO SUCH TESTIMONY, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV

THE SENTENCE OF 16 YEARS IMPOSED UPON THE APPELLANT, WHICH EXCEEDED THE PRESUMPTIVE 15 YEAR SENTENCE FOR A FIRST[-]DEGREE CRIME WAS UNCONSTITUTIONAL, WAS TOTALLY DISPARATE TO THE SENTENCES IMPOSED UPON THE MORE CULPABLE CO-DEFENDANTS, AND REPRESENTED AN IMPROPER BALANCE OF THE AGGRAVATING AND MITIGATING FACTORS.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

On December 8, 1999, defendant, along with five others, committed a home invasion robbery in Ridgefield Park. The house was owned by Juan Francisco Torres, also the owner of two jewelry stores in the Bronx. One of defendant's cohorts, known only as Mundo, had previously worked near one of Torres' businesses and knew Torres had a safe in his home. Mundo's plan was for the group to gain entry while Torres was at work through a ruse. Co-defendants Kelvin Sosa and Barbara Gomez would pose as floral delivery people. When Torres' family answered the door, Sosa and Gomez would try to gain entry, allowing the others to enter and remove the safe.

The group drove to Ridgefield Park, and Sosa and Gomez approached the door to Torres' home with a box of flowers. The only person home at the time was Torres' twelve-year-old daughter, Vickie. She answered the door, Sosa and Gomez gave her the box of flowers, and requested a drink of water. Vickie brought them into the kitchen, giving defendant and the others opportunity to enter the house. Sosa, who was armed with a gun, grabbed Vickie and threatened her if she screamed. Eventually, the young girl's eyes and mouth were covered with duct tape, her hands were bound behind her with tape, and she was brought to her parents' bedroom where the safe was located. Defendant, Sosa, and two of the other men brought Torres' safe downstairs and loaded it into their van. Everyone left and returned to the Bronx where they opened the safe, which contained jewelry that Mundo sold. He agreed to pay everyone from the proceeds.

Vickie freed herself and called the police. Torres came home from work to find his house surrounded by police vehicles. He reported that his safe was missing, and estimated that it contained $30,000 in cash and $200,000 worth of jewelry.

On January 26, 2000, Vickie was shown a photo array at the police station and chose a picture of Sosa as the person who had the gun and came into the house first. The police went to Sosa's home in the Bronx and arrested him. He gave a statement implicating defendant and the others, and identified photos of defendant and Gomez. Sosa struck a plea bargain with the State, and testified at defendant's trial.

In February 2000, Vickie viewed another photo array, and, though less certain, selected a picture of Gomez as the woman that had entered the house and delivered the flowers. That same day, she was shown a second photo array that included defendant's picture. She did not identify defendant or any of the other people involved in the robbery.

Gomez was arrested on March 4, 2000, at the airport as she returned from the Dominican Republic. She gave a statement to police detailing her involvement, and that of Sosa, defendant, and the other men. She identified defendant's picture from a photographic array, knew him by name, and provided police with his home phone number. Gomez struck a plea bargain with the state and testified at defendant's trial.

Defendant was arrested and provided a statement to police that was read to the jury. He admitted driving to New Jersey to Torres' house with the others, but he denied ever going in the house. He claimed that the others exited the van carrying flowers, and later returned carrying something covered in a sheet. Defendant claimed he did not know what it was. He also denied knowing that his cohorts were going to commit a robbery or that a gun would be involved.

Defendant did not call any witnesses at trial. The jury convicted him of all charges.

II.

The argument defendant makes in Point I arose in the following context. On April 16, 2001, defendant appeared in court with his attorney. A trial date of June 4 was set, and defendant received the appropriate Hudson warnings from the judge. Defendant failed to appear on June 4, but the case was adjourned to July 9 because defense counsel was scheduled to undergo a medical procedure. On July 9, defendant did not appear again. For some unexplained reason, the case was delayed one day, and trial began on July 10.

Before selecting a jury, however, the judge inquired of defense counsel what efforts he had made to secure defendant's presence. Counsel indicated that he had called defendant and his father, who had been "intimately involved in the defense," and left messages regarding the new trial date. His secretary actually reached someone at defendant's home and provided the new date. Counsel also sent two certified letters to two different addresses provided by defendant advising of the new trial date. Both were signed for, and counsel had the receipts.

During his preliminary charge to the jury venire, the judge gave the following instruction:

Now, ladies and gentlemen, you may have noticed that [] the defendant[] is not present in court this morning. [Defendant] has a prior business commitment and has decided, as it's his constitutional right, not to be present at this trial. This is his right and he has chosen to exercise it. No adverse inference can be drawn form the fact that he is not sitting at counsel table with his attorney. His attorney is here on his behalf.

There was no objection, and, the record implies that defense counsel actually reminded the judge that the charge should be given.

Defendant contends that the judge erred by proceeding with the trial in his absence. As a corollary, defendant claims the judge's instruction was plain error because "there [wa]s no conceivable justification for the . . . comments . . . that [defendant] was not present because of a business commitment." The State counters that defendant "knowingly, voluntarily, and unjustifiably absented himself from his own trial." As to the instruction, the State argues that the judge's reference to a "business commitment" was harmless and the essential point of the model jury charge, i.e., that defendant had a right to absent himself from the trial and that his absence could not be used against him, was conveyed to the prospective jurors. We find defendant's arguments to be unavailing.

Defendant claims that the facts in State v. Whaley, 168 N.J. 94 (2001), a case in which the Court reversed defendant's in absentia conviction, "are so similar to the facts herein, that there is no legitimate way to distinguish the two cases." We disagree. In Whaley, defendant was never apprised of the trial date at all. Id. at 97 ("That no trial date was set at either of the two in-court appearances made by defendant in September and October 1995 is undisputed.").

The facts here are more similar to those presented in State v. Finklea, 147 N.J. 211 (1996), certif. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997). There, defendant was notified of the actual trial date by the judge, and failed to appear. Id. at 219. The judge adjourned the case, initially for two weeks to allow defense counsel to find his client, and then for one additional day. Ibid. In affirming defendant's conviction in absentia, the Court noted,

If a defendant does not appear in court for trial after being informed in court of the trial date and supplemental notification by defense counsel, a requirement that the trial court must give notice of an adjourned date would vest in a defendant the power to prevent the trial from proceeding until the defendant is willing to appear. Neither constitutional law, nor our rules of criminal procedure, require such extreme measures.

[Ibid.]

Thus, the judge in this case did not err in commencing defendant's trial in absentia.

Moreover, defendant's initial waiver of his right to be present at trial was reaffirmed when he failed to move for a new trial before sentencing. R. 3:20-2; and see Finklea, supra, 147 N.J. at 220-21 ("Where . . . a defendant was informed in court of the time and place of trial, and . . . fails to appear and also fails to file the appropriate motion challenging the waiver, the failure to make the appropriate motion before the trial court constitutes a second waiver pursuant to Rule 3:16(b).").

Defendant's argument about the alleged error in the judge's charge is equally unpersuasive. While the judge should not have referred to a "business commitment" as defendant's reason for not appearing, the balance of the judge's instruction told the jury that defendant had a constitutional right not to be present, and that no adverse conclusion should be drawn from his absence. These were accurate statements of the law. See Model Criminal Jury Charge, "Defendant's Absence From Trial" (instructing the jury "not to consider for any purpose or in any manner . . . the fact that defendant was not present at trial"). The stray comment made by the judge about defendant having a "business commitment" did not amount to plain error. R. 2:10-2.

Defendant's second point centers on the testimony of Sosa, Gomez, and detective Carmen Espinal. In particular, Sosa and Gomez were permitted to testify about their out-of-court photo identifications of defendant. Espinal was permitted to testify that in their post-arrest statements, Sosa and Gomez implicated defendant, and she also told the jury about the photographic identifications. Defendant contends this testimony was all inadmissible hearsay.

We note that no objection was ever made to any of the testimony. Therefore, we must decide whether its admission was plain error, i.e., error that had the clear capacity to bring about an unjust result. R. 2:10-2. We conclude it was not.

The out-of-court identifications are specifically not hearsay. See N.J.R.E. 803(a)(3) ("a prior identification of a person made after perceiving that person if made in circumstances precluding unfairness or unreliability" is not hearsay). Espinal's testimony in this regard was also clearly admissible. See State v. Farrow, 61 N.J. 434, 453 (1972) ("testimony of a third party as to a statement of prior identification by a person, when that person is a witness at the trial, is clearly admissible in this state"), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973).

While Espinal's testimony that the cooperating co-defendants gave statements implicating defendant was likely hearsay, there was no objection. Additionally, both Sosa and Gomez testified and were vigorously cross-examined. Sosa admitted that he had lied to the police regarding certain aspects of his statement. Thus, to the extent permitting Espinal to tell the jury that Sosa and Gomez implicated defendant was error, it was harmless.

Defendant also contends the judge committed reversible error by limiting his cross-examination of Sosa as to his prior drug conviction in New York. Although defense counsel was permitted to ask about the charge and the sentence imposed, the judge sustained the prosecutor's objection when counsel asked Sosa what type of drugs he possessed. We find the argument without merit.

N.J.R.E. 609 provides that "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." Whether to admit evidence of a prior conviction rests with the sound discretion of the trial court. State v. Sands, 76 N.J. 127, 144 (1978). Certainly as it relates to a criminal defendant, the Court has limited the scope of the State's inquiry to "the date, degree, and number" of the defendant's prior convictions, State v. Brunson, 132 N.J. 377, 393 (1993), and the sentences imposed, State v. Sinclair, 57 N.J. 56, 63 (1970). Whenever the judge concludes the evidence poses an undue risk of prejudice to the defendant, he is empowered to sanitize it further. State v. Hamilton, 193 N.J. 255, 268-69 (2008).

Defendant cites no contrary authority when the issue involves the prior convictions of a cooperating State's witness. We cannot conclude that the judge mistakenly exercised his discretion by not permitting inquiry into the nature of the drugs Sosa possessed.

In Point III, defendant complains about the allegedly ineffective assistance of his trial counsel. We decline to consider the issue on direct appeal, reserving for defendant the opportunity to file an appropriate post-conviction relief petition should he so choose. State v. Preciose, 129 N.J. 451, 462 (1992).

In Point IV, defendant argues that his sentence was "unconstitutional," "totally disparate to the sentences imposed upon" his "more culpable" co-defendants, and resulted from an improper "balanc[ing] of the aggravating and mitigating factors." We disagree.

At sentencing, the judge noted that defendant had no prior criminal record. He found, however, that defendant committed the offense in a cruel and heinous manner; that he knew the vulnerability of his victim, given her young age; that there was a risk defendant would re-offend; and that defendant and others needed to be deterred. N.J.S.A. 2C:44-1(a)(1), (2), (3) and (9). The judge also found two mitigating factors, in particular that defendant had no prior criminal record and his imprisonment would work a hardship upon his family. N.J.S.A. 2C:44-1(b)(7) and (11). He concluded the aggravating factors outweighed the mitigating factors.

Defendant contends that his sentence of sixteen years, one year above the midpoint of a permissible ordinary term sentence for a first-degree crime, N.J.S.A. 2C:43-6(a)(1), violated his Sixth Amendment rights because it was based upon aggravating factors, other than his prior record, not found by a jury. However, defendant misapprehends the scope of the Court's holding in State v. Natale, 184 N.J. 458 (2005), and the dicta in State v. Adams, 194 N.J. 186, 209 (2008). Natale "no longer require[d] sentencing courts to commence their exercise of sentencing discretion from the starting point of a presumptive sentence." State v. Thomas, 188 N.J. 137, 152 (2006). Natale and its progeny did not limit the sentencing judge's ability to determine aggravating factors without a jury. In fact, directly contrary to defendant's argument, the Court has said, "it cannot be disputed that aggravating factors (3) and (9) . . . can be based on assessment of a defendant beyond the mere fact of a prior conviction, or even in the absence of a criminal conviction." Thomas, supra, 188 N.J. at 154. Defendant's constitutional argument lacks merit.

Defendant argues his sentence was so disparate when compared to those imposed upon Sosa and Gomez that it was "invalid." Sosa, a juvenile at the time, pled guilty to first-degree robbery as an adult, was sentenced, apparently as a second-degree offender, to five years imprisonment with an 85% NERA disqualifier. Gomez, an adult, received the same plea bargain. Defendant also claims the judge erred in his weighing of the aggravating and mitigating factors.

We begin by noting the limited nature of our review. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).

"Disparity may invalidate an otherwise sound and lawful sentence." State v. Roach, 146 N.J. 208, 232, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). However, "'[a] sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter.'" Ibid. (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). To avoid unfair disparity,

The trial court must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria. The court should then inquire into the basis of the sentences imposed on the other defendant. It should further consider the length, terms, and conditions of the sentence imposed on the co-defendant. If the co-defendant is sufficiently similar, the court must give the sentence imposed on the co-defendant substantive weight when sentencing the defendant in order to avoid excessive disparity.

[Roach, supra, 146 N.J. at 233.]

We have not been supplied with any information regarding Sosa's and Gomez's "relevant sentencing criteria." However, even without that, we have no trouble concluding that their situations, and that of defendant, were not "sufficiently similar."

First, Sosa was a juvenile. Despite that fact, he was sentenced as an adult to the equivalent of a second-degree robbery with a NERA parole disqualifier. Gomez, too, pled guilty to a first-degree crime, was sentenced as a second-degree offender, and was not eligible for parole pursuant to NERA. Second, unlike defendant who did not appear at trial and remained un-apprehended for many years thereafter, Sosa and Gomez cooperated with the State. N.J.S.A. 2C:44-1(b)(12). Third, although defendant contends Sosa and Gomez were "more culpable" than he, the testimony at trial was that defendant, contrary to his statement to the police, was an active participant in the home invasion and placed duct tape over the twelve-year old victim during the assault. Any disparity between defendant's sentence, and those imposed upon his two co-defendants, does not require reversal.

We find defendant's final sentencing argument, i.e., that the judge improperly weighed the aggravating and mitigating factors, to be of insufficient merit to warrant further discussion. R. 2:11-3(e)(2).

 
Affirmed.

State v. Hudson, 119 N.J. 165 (1990).

Counsel supplemented this statement the next day by indicating that one of the receipt cards actually bore defendant's signature.

Defendant's brief also cites to a third co-defendant, Emerson Velez, Jr., who received the same plea bargain.

(continued)

(continued)

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A-3139-07T4

July 6, 2009