STATE OF NEW JERSEY v. RICKY ROMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICKY ROMAN,

Defendant-Appellant.

____________________________________________

October 7, 2016

Argued September 13, 2016 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-05-0807.

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Kirsch, of counsel and on the briefs).

Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Ms. Schuster, of counsel and on the brief).

PER CURIAM

Defendant Ricky Roman was found guilty of murder and other offenses, and sentenced to life in prison. He appeals from the judgment of conviction dated April 3, 2014. The State has filed a cross-appeal from the judgment, challenging the sentence on the ground that the trial court erred by failing to impose the mandatory minimum term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. For the reasons that follow, we affirm defendant's conviction and the sentences imposed for murder and unlawful possession of a weapon, vacate the sentence for possession of a weapon for an unlawful purpose, and remand for entry of an amended judgment of conviction.

I.

A Hudson County grand jury charged defendant with the first-degree murder of Kareem Trowell, N.J.S.A. 2C:11-3a(1) and (2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. Defendant's first trial resulted in a mistrial.

At defendant's second trial, A.C. testified that she had a six-year relationship with defendant, which was "on and off" because they were both young, jealous and "wanted to do other things."1 During their relationship, A.C. resided with defendant for about two years. According to A.C., defendant told her that if she ever left him and became romantically involved with some else, he would "hurt them."

A.C. knew Trowell for a long time. They had grown up in the same area where they still resided. In September 2010, A.C. and Trowell became close friends, and they began seeing each other. A.C. was not dating defendant at that time, but spoke with him occasionally. A.C. testified that defendant called her and said that Trowell was saying that he was having a sexual relationship with her, which A.C. denied.

A.C. stated that defendant was upset and angry. He told A.C. that "he would hurt" Trowell. Defendant said he would kill Trowell because of his relationship with her. A.C. assured defendant, and they began dating again. However, when defendant became upset with A.C., he would tell her that he wanted to hurt or kill Trowell. A.C. testified that she considered his threats to be "just talk."

W.M. testified at defendant's first trial. He appeared in December 2013 to testify at defendant's second trial, but the trial was adjourned. Detective John Mennella of the Hudson County Prosecutor's Office (HCPO) served a subpoena on W.M. for the new trial date in January 2014. W.M. did not appear. Mennella testified that W.M. was homeless, but he endeavored to locate him so that he could be brought to court to testify.

Mennella checked in the place where W.M. had been residing, and spoke to a person there. He also looked for W.M. at W.M.'s mother's address and at his previous addresses. Mennella checked local area hospitals, and the HCPO conducted a statewide search of correctional facilities to see if W.M. had been taken into custody. Mennella also spoke to a person who may have been M.W.'s roommate, but that individual said he had not seen W.M. in several weeks.

The judge declared M.W. an unavailable witness and permitted the State to play an audio recording of W.M.'s testimony from the first trial, which included an audio recording of the statement that W.M. gave to detectives from the HCPO on October 25, 2010.

At the first trial, W.M. testified that he had known defendant and Trowell for more than twenty years. He said that on October 25, 2010, at around 2:00 or 2:15 p.m., he was in the parking lot of a housing complex in Jersey City. W.M. was talking to a friend. He saw a few people there but he had his back to them. He heard a commotion and saw people running. He stated "that was it," indicating that he had nothing further to say about the incident.

W.M. was then confronted with the statement he made to detectives from the HCPO. In that statement, which was given under oath, W.M. said that around 2:15 p.m., he was in the parking lot of a housing complex in Jersey City. He stated that defendant entered the area and stabbed Trowell in the back.

W.M. described defendant's apparel. He noted that defendant had his hands in his pocket when he entered the area. W.M. said defendant had a knife inside his pants pocket, but his shirt was wrapped over the knife so that no one could "actually see it." W.M. indicated that the knife was at least ten to twelve inches long. It was skinny at the tip, but wider towards the handle, which was black.

According to W.M., defendant was "joking back and forth" with four men. Defendant then walked over and struck Trowell in the back. W.M. said defendant and Trowell did not exchange words before defendant stabbed Trowell. W.M. only saw defendant stab Trowell once in the back. W.M. stated that "[e]verything happened so fast."

After defendant stabbed him, Trowell began to run and almost fell. Defendant chased after him and dropped his knife, but Trowell had already made it inside a residence in the housing complex. Defendant took the knife and put it in his right, front pocket. Defendant turned around and commented that if he had his gun, he would have shot Trowell. He then walked out on to the street, and turned left. W.M. said he ran to tell Trowell's uncle what had happened.

M.B. testified that he was in his home eating a sandwich when Trowell entered through the unlocked back door. M.B. had known Trowell his entire life, and Trowell had been to his home previously. M.B. asked Trowell what happened, but he did not respond. Trowell took off his coat, and M.B. saw a circle of blood on the back of his shirt. Trowell tried to get to the front door, but collapsed. M.B. ran outside to see if anyone was around, but he did not see anyone and went back inside to assist Trowell. Trowell's brother arrived and took Trowell to the hospital.

Trowell died later at the hospital. Dr. Di Wang, the medical examiner, testified that Trowell had sustained two stab wounds to the back, one 4.5 inches deep and the other 2.5 inches deep. Dr. Wang stated that the first wound was the cause of death. The deeper wound perforated Trowell's heart and lungs, causing a significant loss of blood. The other wound did not penetrate any organs. Dr. Wang said the stab wounds were caused by a very sharp, relatively clean object.

Sergeant Michael Crowe of the HCPO went to M.B.'s residence after Trowell was stabbed. He found a leather jacket on the floor in a pool of blood and bloodstains on the sidewalk leading up to the residence. Test results indicated that the blood was not that of anyone other than Trowell. Crowe testified that when he arrived, Trowell's family members had already taken him to the hospital.

The following day, the detectives found a knife in a sewer on a street. The knife had a straight blade, about eight inches in length. The blade was visible, but the black handle was partially wrapped in a multi-colored pillowcase. Defendant was known to reside near the sewer where the knife was recovered. The jury found defendant guilty on all counts. The trial judge sentenced defendant to life imprisonment for the murder. The judge also imposed a concurrent five-year sentence for possession of a weapon for an unlawful purpose, and a concurrent eighteen-year term for unlawful possession of a weapon. The judge ordered that the sentences be served concurrently with a sentence defendant was then serving. The judge filed a judgment of conviction dated April 3, 2014. Defendant's appeal and the State's cross-appeal followed.

On appeal, defendant raises the following arguments

POINT I

JUST AS THE STATE MAY NOT CONCEAL AN INADMISSIBLE HEARSAY STATEMENT IN ANOTHER ADMISSIBLE ONE, IT VIOLATES THE CONFRONTATION CLAUSE IF THE STATE IS PERMITTED, OVER A DEFENSE OBJECTION, TO ADMIT AN UNAVAILABLE WITNESS'S PRIOR INADMISSIBLE "TESTIMONIAL" STATEMENT TO POLICE INTO EVIDENCE SIMPLY BECAUSE IT WAS REFERRED TO IN AN OTHERWISE ADMISSIBLE EXCERPT OF TESTIMONY FROM A PRIOR TRIAL.

POINT II

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE AND MERGER SHOULD BE ORDERED.

In its cross-appeal, the State argues

DEFENDANT'S SENTENCE IS ILLEGAL BECAUSE THE TRIAL COURT NEGLECTED TO IMPOSE AN 85 PERCENT PAROLE DISQUALIFIER FOR DEFENDANT'S LIFE SENTENCE UNDER NERA. THIS COURT MUST REMAND THE MATTER FOR RESENTENCING. ON REMAND, THE JUDGMENT OF CONVICTION SHOULD ALSO BE AMENDED TO REFLECT APPROPRIATE MERGER OF COUNTS ONE AND TWO.

II.

Defendant contends that he was denied his right to confrontation by the admission into evidence of the statement that W.M. gave to the police.

The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee that the accused in a criminal case has the right to confront the witnesses against him. The New Jersey courts rely upon federal case law "to ensure that the two provisions provide equivalent protection." State v. Roach, 219 N.J. 58, 74 (2014) (citing State v. Miller, 170 N.J. 417, 425-26 (2002), cert. denied sub nom., ___ U.S. ___, 135 S. Ct. 2348, 192 L. Ed. 2d 148 (2015)).

The right to confrontation applies to out-of-court statements that are "testimonial." Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004). If the statement is testimonial, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Roach, supra, 219 N.J. at 74 (quoting Crawford, supra, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203).

The State argues that defendant failed to preserve an objection to the admission of W.M.'s prior statement to the police on Confrontation Clause grounds. The State notes that at the second trial, defendant's objection to the admission of W.M.'s prior trial testimony and statement to the police was based on the contention that the State had not shown W.M. was unavailable for trial.

The State asserts that defendant's objection was based on the requirements of hearsay rules, rather than upon the Confrontation Clause. We disagree. A defendant may waive his or her right to confrontation. State v. Williams, 219 N.J. 89, 92-93 (2014), cert. denied sub nom., Williams v. New Jersey, U.S. , 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015). Here, however, defendant did not waive his objection to the admission of W.M.'s prior testimony and statement on confrontation grounds. The objection by defendant's attorney was sufficiently broad to encompass an objection based upon the right to confrontation.

Defendant argues that his right to confrontation was violated by the admission of W.M.'s prior statement. Defendant does not argue, as he argued in the trial court, that the State had not shown that W.M. was unavailable. Defendant also does not argue that his right to confrontation was violated by the admission of W.M.'s testimony at the first trial.

Rather, defendant maintains that his right to confrontation was violated by the admission of the statement that W.M. gave to the police in which he said, among other things, that he saw defendant stab Trowell in the parking lot of a housing complex on the afternoon of October 25, 2014.

Defendant concedes that W.M.'s statement was admissible at the first trial because W.M. testified and he could be cross-examined about the prior statement before the jury that was deciding the case. Defendant also concedes that in the second trial, the State could admit W.M.'s prior trial testimony because defendant had the full opportunity to cross-examine W.M. at the first trial.

Defendant argues, however, that the State could not admit W.M.'s prior statement to the police in the second trial. He contends the State cannot "hide" an inadmissible prior statement inside admissible testimony from the prior trial. We are not persuaded by this argument.

As noted, in Crawford, the Court held that the Confrontation Clause does not preclude admission of a prior testimonial statement if the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Crawford, supra, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. Here, W.M.'s prior statement to the police was introduced at the first trial and defense counsel had the opportunity to cross-examine W.M. about that statement. Defense counsel did, in fact, cross-examine W.M. about his statement in the first trial.

When W.M. was confronted with his prior statement to the police in the first trial, that statement became part of his trial testimony in that proceeding. We are therefore convinced that defendant's right to confrontation was not violated when the court permitted the State to admit W.M.'s statement as evidence in the second trial.

In support of his argument that the statement could not be admitted at the second trial, defendant relies upon California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). In that case, a sixteen-year old minor was arrested for selling marijuana to an undercover police officer and later named the defendant as his supplier. Id. at 151, 90 S. Ct. at 1931, 26 L. Ed. 2d at 493. At a preliminary hearing, the minor again named the defendant as his supplier, but said that instead of personally delivering the drugs to him, defendant merely had showed him where to find them. Ibid. The minor's testimony was subject to extensive cross-examination by the defendant's attorney, and after the hearing, the defendant was charged with furnishing a minor with marijuana. Ibid.

At the defendant's trial, the minor testified and while he admitted that he had obtained the marijuana, he was uncertain how he had done so. Id. at 152, 90 S. Ct. at 1932, 26 L. Ed. 2d at 493. The prosecutor then admitted the minor's testimony from the preliminary hearing, as well as a prior statement that the minor gave to a police officer, in which he indicated that the defendant had personally delivered the drugs to him. Id. at 152-53, 90 S. Ct. at 1932, 26 L. Ed. 2d at 493-94.

The Supreme Court stated that the Confrontation Clause is not violated by the admission of a declarant's out-of-court statements "as long as the declarant is testifying as a witness and subject to full and effective cross-examination." Id. at 158, 90 S. Ct. at 1935, 26 L. Ed. 2d at 497. The inability to cross-examine the declarant at the time he made his prior statement is not of "crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial." Id. at 159, 90 S. Ct. at 1935, 26 L. Ed. 2d at 497.

The Court also held that the declarant's testimony at the preliminary hearing was admissible "wholly apart from the question of whether [the defendant] had an effective opportunity for confrontation at the subsequent trial." Id. at 165, 90 S. Ct. at 1938, 26 L. Ed. 2d at 501. The Court noted that the minor had testified under oath, the defendant had been represented by counsel, defendant had the opportunity to cross-examine the minor, the proceedings were conducted before a judicial tribunal, and a judicial record of the hearing had been created. Ibid. The Court stated that under the circumstances, the minor's testimony at the preliminary hearing would have been admissible at the subsequent trial, even in the minor's absence, if the minor was unavailable despite good-faith efforts on the part of the State to produce him. Id. at 165, 90 S. Ct. at 1938-39, 26 L. Ed. 2d at 501.

We are convinced that defendant's reliance on Green is misplaced. Green makes clear that the Confrontation Clause did not preclude admission at the first trial of W.M.'s prior statement to the police, or the admission of W.M.'s testimony from the first trial in the subsequent trial. As we have explained, the record shows that W.M.'s prior statement to the police was introduced and became a part of his testimony at the first trial. At that trial, defendant's attorney had a full opportunity to cross-examine W.M. about that statement.

Defendant asserts that under Green, W.M.'s prior statement to the police could not be admitted in the second trial unless W.M. was subject to cross-examination at the second trial. In Green, the Court stated that there was no constitutional significance to the fact that the jury at the defendant's trial did not have the opportunity to view the declarant's demeanor when he made his out-of-court statement. Id. at 160, 90 S. Ct. at 1936, 26 L. Ed. 2d at 498. The Court noted that the jury would have the opportunity "to observe and evaluate [the declarant's] demeanor as he either disavows or qualifies his earlier statement." Ibid.

However, the Green Court did not specifically address the issue presented here, which is whether a declarant's prior out-of-court statement can be admitted at a second trial, when the declarant is unavailable and defendant had an opportunity to cross-examine the declarant concerning that statement at the first trial. We note that, although the jurors in the second trial did not have an opportunity to see W.M. testify, they were able to hear the audio tape of his prior testimony as well as the audio recording of the statement he gave to the police.

On appeal, defendant also relies upon State v. Farquharson, 321 N.J. Super. 117 (App. Div.), certif. denied, 162 N.J. 129 (1999). In that case, the defendant was tried twice on drug possession and distribution charges. Id. at 119. At the first trial, the defendant testified that in the encounter, another individual had dropped the contraband, and he merely picked up what she had dropped and returned it to her. Ibid.

In addition, the defendant's former attorney testified that this other individual had made two statements denying the defendant's involvement in the drug transaction. Ibid. We reversed the defendant's conviction because the State failed to take sufficient steps to secure the attendance of this other individual at the trial. Ibid. (citing State v. Farquharson, 280 N.J. Super. 239 (App. Div.) certif. denied, 142 N.J. 517 (1995)).

In the second trial, the State produced the missing witness. Id. at 119. She testified that she told the defendant's prior counsel that the defendant did not sell or distribute drugs to her, but she recanted these statements and testified for the State. Ibid. The defendant elected not to testify, and the State read his prior testimony into the record, which included his impeachment with several prior convictions. Id. at 120.

We held that admission of the defendant's prior testimony was permissible, but the trial court erred by allowing the State to introduce his prior convictions for impeachment purposes. Id. at 120-21. We noted that under N.J.R.E. 404, prior convictions are only admissible for the purpose of affecting the credibility of a witness. Id. at 121. Since the defendant was not a witness at the second trial, the State could not admit his prior convictions in that proceeding for impeachment. Ibid.

Clearly, Farquharson has no bearing on this case. That decision does not address a defendant's right to confrontation. Moreover, Farquharson dealt with the use of prior convictions for impeachment. This case does not involve the introduction of a prior conviction of a defendant, but rather introduction of a witness' prior inconsistent statement.

As we stated previously, the Confrontation Clause did not bar the admission of W.M.'s prior statement to the police in defendant's first trial, and it did not preclude the admission of W.M.'s testimony from the first trial, which included his prior statement to the police and the cross-examination regarding that statement. We therefore reject defendant's contention that he was denied his right to confrontation at the second trial.

III.

Defendant further argues that his sentence is manifestly excessive. In reviewing a sentence, we apply a deferential standard of review and we may not substitute our judgment for that of the trial court. State v. Lawless, 214 N.J. 594, 606 (2013). We must affirm the sentence if the aggravating and mitigating factors are properly identified, supported by the record, and properly balanced, so long as the sentence does not "shock the judicial conscience." State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Roth, 95 N.J. 334, 365 (1984)).

Here, the judge found aggravating factors three, N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors.

The judge sentenced defendant to life imprisonment for Trowell's murder. The judge imposed a concurrent five-year term of incarceration for unlawful possession of a weapon, and a concurrent eighteen-month prison term for unlawful possession of a weapon. The judge ordered that these sentences be served concurrently to a sentence defendant was then serving.

Defendant argues that the trial court erred by failing to merge his murder conviction with the conviction for possession of a weapon for an unlawful purpose. The State acknowledges that these two offenses should have been merged for sentencing purposes. We agree that merger was required.

Next, defendant argues that the trial court erred by failing to consider as mitigating factors his "relative youth" and the hardship his incarceration will cause to his family. We note that at the sentencing hearing, defendant's attorney stated that defendant was "very young" and had four children, who were three, five, seven and eleven years old. Defense counsel said defendant's children "need him" and "love him very much[.]"

Defendant was twenty-seven years old when he was sentenced. He may be young when compared with others but this is not a statutory mitigating factor and the court was not required to consider it. Moreover, although defendant has four children, he presented no evidence to the trial court indicating that his incarceration "would entail excessive hardship" to his dependents. N.J.S.A. 2C:44-1b(11).

We therefore conclude that there is sufficient evidence in the record to support the trial court's findings regarding the aggravating and mitigating factors. We also conclude that sentences imposed are a proper exercise of the court's discretion and do not shock the judicial conscience. Case, supra, 220 N.J. at 65.

As noted, in its cross-appeal, the State argues that the court erred by failing to impose the 85% parole disqualifier required by NERA. N.J.S.A. 2C:43-7.2a. As the State points out, murder is one of the offenses to which NERA applies. N.J.S.A. 2C:43-7.2d(1). Therefore, defendant must serve 85% of the sentence imposed, and "for the purpose of calculating the minimum term of parole ineligibility pursuant to [N.J.S.A. 2C:43-7.2a], a sentence of life imprisonment shall be deemed to be 75 years."

Accordingly, we affirm defendant's conviction and the sentences imposed for murder and unlawful possession of a weapon, and vacate the sentence for possession of a weapon for an unlawful purpose. We remand for entry of an amended judgment of conviction merging the murder conviction with the conviction for possession of a weapon for an unlawful purpose, and imposing the mandatory minimum term required by NERA.

Affirmed and remanded to the trial court for entry of an amended judgment of conviction, in conformance with this opinion.

1 We refer to A.C. and other witnesses by their initials, in order to protect their privacy.