STATE OF NEW JERSEY v. JOSE L. WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE L. WILLIAMS, a/k/a GEORGE

WILLIAMS, JOSE B. WILLIAMS,

JORGE WILLIAMS,

Defendant-Appellant.

____________________________________

June 25, 2015

Submitted February 11, 2015 Decided

Before Judges Waugh and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-05-00839.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Jonathan M. Carrillo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jose L. Williams appeals his conviction, following a jury trial, for third-degree burglary, N.J.S.A. 2C:18-2(b) (count one); third-degree conspiracy, N.J.S.A. 2C:5-2 and 2C:18-2(b) (count two); third-degree conspiracy to commit theft of movable property, N.J.S.A. 2C:5-2 and 2C:20-3(a) (count four); third-degree conspiracy to commit criminal mischief, N.J.S.A. 2C:5-2 and 2C:17-3(a)(1) (count six); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count seven). He also appeals his aggregate sentence of incarceration for ten years, with three years of parole ineligibility. We reverse the conviction and remand for a new trial.

I.

We discern the following facts and procedural history from the record on appeal.

On December 14, 2011, between 7:00 p.m. and 7:30 p.m., Kearny Police Officer Sean Kelly was dispatched to an unoccupied warehouse on Tappan Street as the result of a report from a caller that there was a burglary in progress. The warehouse was located between Hoyt Street and Tappan Street in Kearny. It had two entrances, one on Tappan Street and the other on Hoyt Street.

Kelly joined Officer John Fabula at the Hoyt Street entrance to the warehouse. He learned from Fabula, who had spoken to the caller, that there had been "a previous incident involving a vehicle that was stationed just outside the door [of the same warehouse] on Tappan Street" a few days earlier.

When Kelly and Fabula checked the warehouse's loading dock, they heard voices and what sounded like the tearing and ripping of metal vents. They also observed a vehicle that matched the description of the one involved in a previous incident at the same location.

After the requested backup arrived, the police created a perimeter around the warehouse, ensuring that both exits from the warehouse were under observation. As one officer was getting into position, a man, later identified as Williams, opened the Hoyt Street door, saw the officer, and closed the door. The officers then started shouting "police" and "you're under arrest." When nobody came out of the warehouse, they requested the assistance of the fire department to pry open the door.

After entering, the police searched the warehouse's first and second floor, as well as the roof, but were unable to find anyone. Kelly observed wiring, ducts, and other pieces of metal and wire inside the warehouse next to the Tappan Street door. He concluded that they were "part of the proceeds from the burglary." However, he conceded that he did not know who put them there.

With the assistance of the K-9 unit, the police searched the basement of the warehouse, which was partially flooded. The dog "hit" on a room in the basement as potentially having people inside, but was unable to "search the room because there [was] a lot of cable, metal piping, various debris" in the way.

After Kelly and Detective Ramon Lopez entered the room, Lopez observed the feet of several men, who were ordered to come out and informed that they were under arrest. They were later identified as Nicholas M. Soto and Juan A. Vasquez. Two more suspects, later identified as Ruben C. Whiteneck and Williams, were located hiding in an adjacent room.

Williams, Whiteneck, Vasquez, and Soto were indicted in April 2012 and charged with the offenses delineated above, as well as theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count three), and criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count five). The defendants, except Vasquez, were tried together over three days in October 2012.

Kelly testified to the facts outline above. During cross-examination by Soto's attorney, he was asked about the earlier incident at the warehouse on December 5, 2011. Kelly, who was not involved in responding to that incident, read the descriptions of the two men allegedly in the truck on December 5 from a report. One man was described as a "bald white male" in his forties. At that point, Williams' attorney objected, stating at sidebar

I'm just going to note my objection for the record on what the co-defendant is extracting, [there is] exposure of prejudice against my client, the license plate number and his physical description. The back door bad acts that the State can't bring in[,] the co-defendant is extracting.

So I would ask . . . co-defense counsel to not be able to go into that territory.

The attorneys discussed whether any testimony about the prior incident had been elicited during direct examination. Williams' attorney maintained that it had not, while Soto's attorney claimed that it had. The judge decided to allow the testimony. Williams' attorney later reiterated the objection for the record. During Kelly's cross-examination by Williams' attorney, he testified that the vehicle, a Chevrolet Tahoe, which he and Fabula had observed on December 14, was registered to Carmen Torres, Williams' girlfriend. Kelly was informed the vehicle had been driven by Williams that day.

Mark Bunimovich, a representative of the Dubrow Management Company (Dubrow), also testified for the State. He explained that his company had managed the warehouse property since 2005, and that he visited it three to four times a week. According to Bunimovich, he would have been notified of any burglaries and none had been reported since Dubrow assumed the warehouse's management in 2005. However, he testified that there had been vandalism.

During Bunimovich's cross-examination, the prosecutor objected to an inquiry regarding past criminal activity at the warehouse, based on a lack of relevance. Williams' counsel argued that, although previous criminal activity at the property might not be directly relevant to the charges being tried, it was related to the defense theory that the warehouse had been burglarized prior to the date of the defendants' arrests. The judge sustained the prosecutor's objection, stating that "anything prior to [December 5] is totally irrelevant."

Bunimovich testified that the property had been vandalized on December 5, 2011, at which time Dubrow had hired an electrician to restore power to the warehouse. Williams' attorney began questioning Bunimovich regarding the eighty-four police dispatches to the warehouse since 2005. The trial judge again reiterated that the time period relevant to the trial was between December 5 and December 14, and precluded that line of questioning.

Bunimovich's most recent visit to the warehouse had been on December 10 or 11. Bunimovich was unsure whether the cable wires he had seen near the exit of the warehouse were rolled up for installation purposes by the electrician or to be taken out of the warehouse illicitly.

Fabula also testified on behalf of the State. He stated that when he arrived at the warehouse, he observed a vehicle that was familiar to him. Williams' attorney objected to Fabula's mentioning that he was "familiar" with the vehicle, but the judge overruled the objection. Fabula did not testify that he had been involved with the December 5 incident, and in fact his testimony was based on the police report of December 11 which cross-referenced a police report of December 5.

The defendants presented one witnesses, an investigator, whose testimony is not relevant to this appeal. At the charge conference, the judge rejected the defense request that he charge trespass as a lesser-included offense of burglary

I am not charging lesser included trespass. The only evidence in this case [indicates] there [is] no other reason to be in the building based upon the evidence presented for a reasonable jury to believe anything but if they were in there and there was a theft taking place. There was no other reason or explanation for being on the premises so I think it would be confusing to charge the jury on trespass.

Each of the defense attorneys argued that the judge should charge trespass. Williams' attorney argued that criminal trespass constituted another "[reason] to be at [the] property which is exactly what [the judge] was looking for." He pointed to the fact that the judge had prohibited him from exploring the "history of partying and graffiti at that building." After considering those arguments, the trial judge again declined to charge trespass, explaining

There [is] no evidence to indicate what the purpose was except if in fact [the jury] would believe that [codefendants] were trying to steal something. And one trying to steal something if the jury does not believe they were attempting to steal something, then the defendants would be found not guilty. I think the jury has a clear choice, one or the other. I [do not] think there [is] an in-between choice so I [am] not going to charge it.

On October 18, the jury found Williams and the two codefendants guilty on counts one, two, four, six and seven. They were acquitted of counts three, theft, and count five, criminal mischief.

Williams was sentenced on February 15, 2013. The judge granted the State's motion for a discretionary extended term under N.J.S.A. 2C:43-7.1(b), based on Williams' lengthy prior record. The judge found aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant would commit another offense, and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need to deter. The judge did not find any mitigating factors. He reiterated that actions like those of Williams damaged the property of others and harmed the community at large. He sentenced Williams to ten years of incarceration with a five-year period of parole ineligibility for the burglary charge, and concurrent five-year terms on counts two, four, and six. On count seven, resisting arrest, the judge imposed a flat, concurrent eighteen-month term. This appeal followed.

II.

Williams makes the following arguments on appeal

POINT I: THE TRIAL JUDGE ERRED IN ADMITTING A PRIOR BAD ACT WITHOUT ANY ABILITY FOR THE DEFENSE TO CROSS-EXAMINE REGARDING THE INCIDENT.

POINT II: THE TRIAL JUDGE ERRED IN REFUSING TO CHARGE THE LESSER-INCLUDED OFFENSE OF CRIMINAL TRESPASS.

POINT III: MERGER OF THE CONSPIRACY OFFENSES IS REQUIRED. (Not Raised Below)

POINT IV: THE TRIAL JUDGE ERRED IN GRANTING THE DISCRETIONARY EXTENDED TERM AND THEREAFTER IMPOSED AN EXCESSIVE SENTENCE.

We start our discussion by addressing the testimony that the Chevrolet Tahoe owned by Williams' girlfriend and a man whose description matched Williams' had been seen outside the warehouse on December 5, 2011. Williams argues that the testimony should have been excluded under N.J.R.E. 404(b). Although his attorney did not specifically cite that rule during the trial, he clearly objected and raised the issue of prejudice from the testimony about prior "bad acts."

The December 5 incident was first mentioned by Kelly during his direct testimony, in an answer that was not responsive to the question he had been asked by the prosecutor. Kelly's testimony was that Fabula had told him about "a previous incident involving a vehicle that was stationed just outside the door [of the warehouse]." The prosecutor promptly stopped Kelly before he described the vehicle or anyone present. The prosecutor was apparently aware of the evidential problem, and refocused Kelly's attention on the question she had asked.

Soto's attorney returned to the subject of the December 5 incident during his cross-examination of Kelly. He established that the vehicle was a Chevrolet Tahoe and that one of the two men who got out of it was "a bald white male." At that point, Williams' attorney objected and asked the trial judge to preclude further testimony concerning that incident. The judge overruled the objection. Later in his cross-examination, Soto's attorney established that Williams had been driving the same vehicle on December 14. Whiteneck's attorney then elicited testimony from Kelly that the description of the "white male" matched Williams, although Kelly admitted that he could "only speculate." During Fabula's cross-examination, Soto's attorney established that the Chevrolet Tahoe in front of the warehouse on December 14 was the same vehicle seen there on December 5, and that the description of the bald white male had been provided by the man who had reported suspicious activity to the police on that day.

We give "substantial deference" to a trial judge's evidentiary rulings, State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001), and review them for abuse of discretion, State v. Burns, 192 N.J. 312, 332 (2007). "Our review of a judge's purely legal conclusions, however, is plenary." State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010), aff'd, 206 N.J. 39 (2011).

When considering the admissibility of evidence of other crimes or wrongs under N.J.R.E. 404(b), we apply the standard adopted by the Supreme Court in State v. Cofield, 127 N.J. 328, 338 (1992). That standard requires a careful analysis of four factors

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[Ibid.]

If the trial judge conducts an appropriate analysis under Cofield, we will not disturb the judge's ruling on the admissibility of 404(b) evidence, absent a "'clear error of judgment.'" State v. Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010) (quoting State v. Marrero, 148 N.J. 469, 483 (1997)), certif. denied, 205 N.J. 78 (2011).

In this case, the trial judge did not hold a 1041 hearing concerning the evidence and did not analyze the issue under Cofield. As a result, there was no finding that the evidence of whether the alleged criminal activity, burglary or trespass, on December 5, had been demonstrated by "clear and convincing" evidence. In addition, we note that the trial judge consistently viewed the events on December 5 and 14 as related, despite the fact that the indictment did not charge any offense related to December 5. Yet, the judge precluded any testimony about the earlier problems at the warehouse.

Moreover, the testimony regarding the December 5 incident was based on inadmissible hearsay. We find no merit in the State's argument that the evidence was not hearsay. The following exchange took place during Fabula's cross-examination by Soto's attorney

Q. [T]here was a description included of two males that the caller had seen coming either out of that car or into that car, was there not?

A. Yes, there was.

Q. Do you remember what they were?

A. Yes. It was a bald, white male and a, I believe a bald, African American male, were described as entering the building coming out of the car.

[(Emphasis added).]

Our reading of the record convinces us that the description of the vehicle seen on December 5 also came from the unidentified caller, rather than personal observations by one of the police witnesses. The out-of-court statements by an unidentified caller were offered for their truth, primarily by Soto's attorney, to show that Williams had already been in the warehouse nine days prior to the defendants' arrests.

In his summation, Soto's attorney used the sighting on December 5 in an attempt to convince the jury that, while Williams may have been in the warehouse to steal, his client was a mere trespasser. He argued as follows

Just Mr. Soto being present does not mean he entered the building with a purpose to commit an offense inside. . . . My client, Mr. Soto, was not found to possess any burglary tools and had absolutely no involvement in that December 5th event that Mr. Williams was put at the exact same location in the exact same car. . . . But one thing's for sure, you can put one of those defendants [there on] December 5th and December 14th, and that's Mr. Williams. Are you going to decide guilt or innocence on the December 5th case? Absolutely not. But it certainly ties Mr. Williams to that location on December 14th.

As the Soto summation demonstrates, the evidence that Williams had been in the warehouse nine days before the arrests supports the State's position that he was there on December 14 to steal the items previously piled inside the warehouse, as opposed to for some other purpose that would not support a conviction for burglary.

Although not raised by Williams, the admission of the testimony of the unidentified caller was violative of Williams' right to confront the witnesses against him. See State v. Branch, 182 N.J. 338, 351 (2005); State v. Bankston, 63 N.J. 263, 268-69 (1973). We express no opinion, however, on the admissibility of evidence, through a competent witness, that Williams had been in the warehouse on December 5, shortly before he was arrested there on December 14.

Because the trial judge did not conduct a Cofield analysis in considering Williams' objection, we find that the admission of the other-crimes evidence, based on the statements of a non-testifying witness, was reversible error. Consequently, we reverse the convictions on appeal and remand for a new trial.

Although we need not reach the issue of the sentence, we address the issue of the trial judge's refusal to charge criminal trespass. The trial judge, who had precluded evidence offered to show that there had been a history of break-ins at the warehouse, denied Williams' request that he charge criminal trespass as a lesser-included offense. The judge's stated reason was that there was no evidence that there would have been another motive to enter the warehouse. Williams argues that the judge's evidential ruling was error and that it precipitated his erroneous refusal to charge trespass.

"A person is guilty of burglary if with purpose to commit an offense therein or thereon" the person "enters a . . . structure" without "license[] or privilege[] to enter." N.J.S.A. 2C:18-2(a). The crime of burglary is complete upon a defendant's unauthorized entry into the premises with the requisite criminal purpose. State v. Mangrella, 214 N.J. Super. 437, 441 (App. Div. 1986), certif. denied, 107 N.J. 127 (1987). Criminal trespass, which is commonly regarded as a lesser-included offense to burglary, occurs when a person "knowing that he is not licensed or privileged to do so . . . enters or surreptiously remains in any . . . structure . . . ." N.J.S.A. 2C:18-3(a).

The nature of the excluded evidence is not clear from the record before us. Consequently, we are not in a position to determine definitively whether it was competent evidence that should have been admitted. The nature of the evidence, if it is offered at the re-trial, should be carefully considered by the judge and, if it is admitted into evidence, a criminal trespass charge would appear appropriate. If it is excluded, a more detailed record should be made of the nature of the evidence and the reasons for its exclusion.

Reversed and remanded.

1 N.J.R.E. 104.