STATE OF NEW JERSEY v. AUDBERTO EGIPCIACO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0827-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AUDBERTO EGIPCIACO,

Defendant-Appellant.

_____________________________

 

Submitted December 14, 2005 - Decided February 7, 2006

Before Judges Conley, Weissbard and

Winkelstein.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, 01-04-1277.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jacqueline E. Turner, Assistant

Deputy Public Defender, of counsel and on

the brief).

Vincent P. Sarubbi, Camden County Prosecutor,

attorney for respondent (Nancy P. Scharff,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Audberto Egipciaco appeals his conviction by a jury of twelve counts of a fourteen-count indictment, as follows: armed robbery, N.J.S.A. 2C:15-1 (counts one, two and eleven); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count three); second-degree burglary, N.J.S.A. 2C:18-2 (count five); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts nine and ten); endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts seven and eight); criminal restraint, N.J.S.A. 2C:13-2a (counts twelve, thirteen and fourteen). Count four, charging third-degree aggravated assault, and count six charging fourth-degree aggravated assault, were dismissed by the State before trial.

After conviction, the State moved for extended term sentencing. The motion was granted and defendant was sentenced on count one to fifty years in prison with a seventeen-year parole ineligibility as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, as well as a five-year period of parole supervision on release. Count three was merged into count one, counts ten and thirteen were merged into count eleven. On count two, a twenty-year term with a seventeen-year NERA parole ineligibility was imposed, concurrent to count one. A ten-year term, subject to NERA, was imposed on count five, concurrent with counts one and two. Five-year terms were imposed on counts eight and fourteen, also concurrent to the sentences on counts one, two, and five. A consecutive fifteen-year term subject to NERA was imposed on count eleven. A five-year term was imposed on count seven, consecutive to counts one, two, five and eight but concurrent with count eleven. Thus, defendant's aggregate term was sixty-five years with a parole disqualifier of nearly thirty years.

I

On January 23, 2001 at about 7:15 p.m., Carmen Garcia and her common-law husband Julio Vasquez were at home on Centennial Street in Camden. A friend, Norma Garcia, and several children were with them. Hearing a knock, sixteen-year-old Catherine Morales, opened the door of the apartment. Two men pushed their way into the room. The men were wearing masks; nevertheless, Ms. Morales testified that she recognized one of them as defendant, a family friend.

Catherine ran upstairs and was followed by the man she identified as defendant. The other man, later identified as co-defendant Reyes, stayed downstairs and put a gun to the head of Norma Garcia. He demanded money and jewelry, but Norma had nothing on her.

Upstairs, defendant threw Carmen to the floor, hit her, and took her jewelry. He told her to be quiet and then told Reyes, who had come upstairs, to look in the closet for jewelry. Carmen testified that she recognized the first man's voice as that of defendant. She also recognized his eyes and ponytail. She had known defendant for about twenty years.

Julio was upstairs with Carmen during the robbery. He also claimed to recognize defendant's voice and ponytail. When defendant hit Carmen, Julio ran to her defense and was struck by defendant on the right side of his head with the gun.

Maria Morales was on her way to visit Julio and Carmen, her aunt and uncle, bringing them some food. As she approached the building, she saw her aunt at the window. Carmen yelled out that two men had just robbed her and were leaving the building. Morales saw two men leave the building, remove the masks they had been wearing and put them on top of their heads. She recognized the men as defendant (known as "Eloi") and Reyes (known as "Gordo"). Morales threw the food she was carrying at the men, who ran to a nearby car and left. Morales then went home and called 911.

As noted, both Carmen and Julio knew defendant. In fact, defendant was a longtime friend of both and had been at their apartment the day of the robbery, leaving about 6:00 p.m. Morales had also been there, leaving shortly after defendant.

In response to Morales' call, Officer Alicea, a relative of Reyes, arrived at the scene. Morales told the officer that "his cousin, Gordo had held up my aunt." Alicea located Reyes and brought him in as a suspect. Later that night at the police station, Morales identified Reyes as one of the two robbers, in a showup using a two-way mirror. She saw defendant two or three days later in a courtroom, at which time she informed a sheriff's officer, and defendant was immediately arrested. A few months later she picked out defendant's photo from a photo array "because he was the one that did the robbery." She also identified defendant in court.

Officer Frank Colon was also dispatched to the scene of the crime to investigate the reported robbery. He spoke with Carmen and Julio, who told him that they recognized defendant's voice. However, this information was not contained in Alicea's report, and a report issued by Detective Finneman indicated that he briefly interviewed Julio and Carmen, but neither could identify the suspects.

At the prosecutor's office on March 22, 2001, Carmen selected a photograph of defendant from a photo array, identifying him as the person who pointed the gun at her and took the money and jewelry. Julio also identified defendant's photo from an array at the prosecutor's office. Both victims identified defendant in the courtroom.

In his defense, defendant presented the testimony of Maria Concepcion as an alibi witness. She stated that she was with defendant on January 23, 2001 at the time of the robbery. Specifically, defendant picked her up from work at Virtua Hospital, they went to a Pathmark, and then to her home where they spent the evening. A video was produced at trial which showed Concepcion walking through Pathmark with someone whom she identified as the defendant. The date on the tape was January 23, 2001, and the time was 6:35 p.m.

On appeal defendant argues that his motion for a mistrial should have been granted. The circumstances leading to that motion were as follows. During Carmen's testimony, when asked if she had told any of the officers on the night of the robbery that defendant was the person who robbed her, she answered in the affirmative. Defense counsel immediately requested a side-bar, where he requested that Judge Natal ask the prosecutor if the identification at issue was contained in any of the reports. The prosecutor responded that she believed it was in Officer Colon's report, but a review of that report revealed that it was not. The judge determined that, "[A]t this point, I'm going to just proceed. That's a question that's a matter for cross-examination why you never told us and it's not in any reports[.]" Defense counsel then moved for a mistrial, stating:

Judge, I'm asking for a mistrial. I do not believe the court has grasped the significance of what was said. With all due respect, I lay upon the record the following. I opened before this jury that this woman did not identify Eloi that particular night because . . . Detective Finneman's report shows that, and I think maybe for the record we should have Detective Finneman's report noted.

. . . .

And in [the report], it specifically states, in fact, the cornerstone of my defense is the fact that two of the three eyewitnesses alleged by the State, they did not identify my client that night, via Detective Finneman and his report.

Now, how could counsel now get up in front of this jury with any credibility, whatsoever, given the circumstances that's just been presented by the State's witness. Judge, the prosecutor was aware of it. It is the prosecutor's duty and obligation to comply with the rules of discovery. This has not been done.

The problem is can it be corrected? No way in God's heaven can this be corrected given the fact that I had literally, specifically informed this jury that during my opening, that's what occurred. Now, we have somebody who just said no, that's not what occurred. Your Honor, it was the prosecutor's witness. I ask for a mistrial.

The prosecutor responded that she did not meet with Officer Colon until the day before, April 28, 2003, at 3:30 in the afternoon. She believed Colon's report contained a logical inference that the victims identified the person that committed the robbery because Colon showed the victims photographs on the night of the incident. The prosecutor argued that the officers would not "show photos blindly." The judge then denied defense counsel's request for a mistrial finding that the issue was one of witness credibility, a matter for cross-examination.

Defense counsel persisted in his argument, noting the seriousness of the alleged discovery violation. The prosecutor replied that Carmen indicated in her March 22 statement that it was defendant in her apartment that night. Pursuant to his examination of that statement, Judge Natal again denied defendant's motion for a mistrial, stating that defense counsel was "provided discovery that [Carmen] said she identified [defendant], she recognized him by his hair and could see his eyes."

Prior to the testimony of Julio and Colon, the prosecutor stated that they would give the same testimony as Carmen, i.e., that an identification was made on the night of the robbery. Defense counsel requested the opportunity to examine these witnesses before they took the stand. The judge granted that request. After the examination of Julio, defense counsel renewed his motion for a mistrial, and in the alternative moved to bar Julio from testifying as to the identification, arguing that he was "extremely prejudiced" because this issue goes to the "theory of the defense." Again, the judge denied the motion.

Following Julio's testimony, the court conducted an N.J.R.E. 104 hearing before allowing Colon to testify. Pursuant to that hearing, defense counsel renewed his motion for mistrial because Colon stated that he would testify that Julio and Carmen identified the defendant by voice on the night of the robbery. After argument, the judge again denied defense counsel's motion for a mistrial.

Defendant's argument is that counsel was misled by the State's failure to provide adequate discovery under R. 3:13-3(c) which provides, in part, that:

The prosecutor shall permit defendant to inspect . . . the following relevant material . . .:

. . . .

(7) record of statements, signed or unsigned, by [persons whom the prosecutor knows to have relevant evidence or information] . . . which are within the possession, custody or control of the prosecutor . . . ;

(8) police reports which are within the possession, custody, or control of the prosecutor;

[R. 3:13-3(c)(7) & (8).]

If the prosecuting attorney discovers additional material or witnesses previously requested or ordered subject to discovery, defense counsel must promptly be notified. R. 3:13-3(g).

Here, defense counsel claims to have relied on the police reports provided to him during discovery. Based on those reports, his defense at trial was to be misidentification. Thus, in his opening, defense counsel stated:

So as for Julio and . . . his wife common law, that night they said, no, we don't know who did this. I say that, because now I'm going to go back. Ms. Morales, the young lady who was walking outside and confronted the two people that left the house, she has a simple, what I would to some degree call a very honest belief, but it's incorrect. This is a straight up misidentification.

And when I say that, I want you all to understand this simple fact, in our process, in our system of jurisprudence, there are no surprises. I have Finneman's report. I also have every statement that was supposed to have been made in this particular case.

. . . .

Because later statements are given. Now contrary to Detective Finneman, the professional in this matter, the one who spoke to them, we have identifications. And now we have, oh, he didn't cover the mask right. Oh, no, we recognized his voice. All these things happen after the fact. That's what the scenario is going to show you.

The record indicates that the prosecutor learned about the January 23 identifications of defendant the day prior to presentation of Carmen's testimony. She explained:

I met with Officer Colon for the first time yesterday at 3:30. He was out of state. He came in, I asked him to explain his report about showing the victim's photographs and says in his report, I showed the victims photographs on the computer. I said, what does that mean, why would you show them photographs? He said because they told they knew who committed the crime that night.

In a later colloquy, the prosecutor indicated that she also learned of the identifications made on the night of the robbery from Carmen and Julio in the late afternoon the day prior to the presentation of their testimony.

After ruling on the motions, Judge Natal stated, "I feel the prosecutor did not act in bad faith. I feel you still have your argument to the jury that the report from Detective Finneman says there was no identification, and it's a question of credibility whether or not these people are believable." Specifically with regard to Colon's testimony, Judge Natal said:

I'm satisfied that the State has acted in good faith. Whether or not this officer's memory is in doubt, that's a question of fact for the jury. I'm satisfied the prosecutor made this known to the defense as soon as they became aware of it.

There is always prejudice to a defendant when he becomes identified by various witnesses, however, the discovery was clear that the people recognized his voice, and therefore, that was always in the discovery, therefore, the fact that his voice was recognized is not new to the case. What is new is that this Officer is indicating that that is why - that he was told that night. He didn't relay the information, didn't put it in his report, but that's whey they were shown photographs. And therefore, that's the court's finding.

At the outset, we note that the testimony at issue concerns when the victims identified defendant as having committed the robbery, not whether they identified him. It is undisputed that Carmen, Julio, and Morales each selected defendant's photograph from an array conducted on March 22, 2001, identifying defendant as one of the robbers. In addition, in statements taken on March 22, Carmen and Julio stated that they recognized defendant's voice. Specifically, Carmen's statement indicates that she knew it was defendant on the day of the robbery.

In State v. Witte, 13 N.J. 598, 611 (1953), the Court stated:

A motion for a mistrial is addressed to the sound discretion of the court; and the denial of the motion is reviewable only for an abuse of discretion. The power is to be exercised with the greatest caution, in the furtherance of justice between the accused and the State. [citations omitted]. Such is our judicial policy. Unless the vice is plainly ineradicable by an instruction to the jury, a mistrial is not allowable of right.

Thus, a motion for a mistrial should be granted only in those situations which would otherwise result in manifest injustice. State v. Di Rienzo, 53 N.J. 360, 383 (1969). When an error is not of constitutional dimension, "it shall be disregarded by the appellate court 'unless it is of a nature as to have been clearly capable of producing an unjust result.'" State v. La Porte, 62 N.J. 312, 318-19 (1973) (quoting R. 2:10-2.) In the context of a discovery violation, the analysis on appeal requires a determination as to whether the defense strategy might have differed significantly in the event the discovery violation had not occurred. State v. Harris, 181 N.J. 391, 519 (2004), cert. denied, ___ U.S. ___ 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

We conclude that the judge did not mistakenly exercise his discretion in denying defendant's motion. The only prejudice identified by defendant flowing from the late discovery is that his opening relied on Detective Finneman's report to argue that despite their later assertions to the contrary, neither Julio nor Carmen were able to identify defendant on the night of the robbery. Defendant makes no credible argument that he was unable to effectively cross-examine the witnesses, and he never asked for a continuance in order to adjust his planned examination of the witnesses. Defendant's argument asks us to assume that the jury not only remembered what counsel said in opening but held against the defense the fact that counsel misstated the proofs. In that regard, counsel never sought to have the judge explain to the jury that the defense opening was based on counsel's reasonable interpretation of the discovery and that he was not to be faulted if he misspoke in good faith; more importantly, the court could have instructed the jury that it was not to denigrate the defense of misidentification in any way due to counsel's misstatement. However, counsel made no such request, but only sought a mistrial. In any event, even without such requests, we are not persuaded that defendant suffered any prejudice from counsel's opening, which as he contends, "would not have been as strident had he known that Colon and the two victims were all going to testify for the first time that there was an early identification made." In fact, according to the witnesses, the trial was not the first time they told anyone that they recognized defendant at the time of the robbery; rather, it was the first time defense counsel became aware that they had conveyed that identification to an officer on the night of the robbery.

Nor are we convinced that the State willfully failed to comply with its discovery obligation under R. 3:13. The defense opening was made days before the prosecutor learned of the discrepancy between the opening statement and what appeared in Finneman's report. The essence of defendant's argument is that the prosecutor should have learned earlier of the January 23, 2001 identification. As stated in his appellate brief,

This case took over two years to get to trial. It is hard to believe that not a single witness was questioned about the identification procedures before he or she testified. The prosecutor noted for the record that she learned of these identifications the day before Ms. Garcia's and Mr. Vasquez' testimony. What this means is that she permitted Carmen Garcia to give quite damaging information to the jury without first notifying defense counsel, who had just opened on a theory that was about to be eviscerated. She presumably would have permitted Mr. Vasquez to also testify without warning had not defense counsel asked for a hearing outside the presence of the jury.

. . . .

To fully comply with the spirit of our rules, she should have, in the previous two years, spoken to her witnesses and Off. Colon and discovered that there was additional and critical information not included in the police report.

Clearly, the prosecutor should not have allowed Carmen to take the stand without disclosing to defense counsel the identification information learned in interviewing the witness the day before. We agree that when a prosecutor interviews a witness and learns new information, not contained in prior reports provided to the defense, that information must be promptly disclosed, whether orally, or, as suggested in State v. DiTolvo, 273 N.J. Super. 111, 115-17 (Law Div. 1994), by creating a discoverable writing embodying the new information. Nevertheless, we do not conclude that the prosecutor knowingly "sandbagged" the defense. We cannot say that, in her efforts to prepare for trial and particularly in the late interviewing of witnesses, the prosecutor was clearly aware of the inconsistency between the witness' testimony and Detective Finneman's report. After all, the fact that the witnesses all claimed to recognize defendant as the robber during the incident was well known. The issue was whether they conveyed that identification to the police on January 23 or said something else.

In the end we are simply not persuaded that the errors complained of so undermined the defense strategy as to deny defendant a fair trial. This is not a case where, for example, the State failed to disclose an eyewitness, Clark, supra, or the State failed to disclose an alleged inculpatory statement of a defendant. State v. Blake, 234 N.J. Super. 166, 173-75 (App. Div. 1989). We are not convinced that the defense strategy would have differed significantly in the absence of the discovery violation. Harris, supra, 181 N.J. at 519. Had the prosecutor divulged the information the day prior to the testimony, defense counsel would not have been placed in a significantly different position than the position in which she found herself on the day the testimony was offered. Even if the information was "withheld," and, as contended by defendant, that "at the very least, the prosecutor had a duty to inform the defense as soon as she found out," it does not appear that defense counsel's strategy would have differed significantly based on this time frame.

II

Defendant argues that his sentence violated his right to trial by jury, relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Both the defendant's brief and that of the State were evidently filed before State v. Natale, 184 N.J. 458 (2005) (Natale II) and State v. Abdullah, 184 N.J. 497, 510-12 (2005) were decided. Because defendant's sentence exceeded the presumptive within the extended term range, it must be vacated. Natale (II), supra, 184 N.J. 483-84. Since there will be a new sentencing, defendant will have the opportunity to address his excessive sentence argument to the judge.

Conviction affirmed; remanded for resentencing.

 
 

William Reyes, Jr. was named as a co-defendant. His case was severed and he was tried separately. We upheld his conviction in a decision filed March 16, 2005, State v. Reyes, No. A-5652-02T3 (App. Div. March 16, 2005).

Officer Colon's report identified defendant and Reyes based upon Morales' observation of them outside the residence immediately following the robbery. In addition, the report indicates that the "victims look[ed] at computer photos at Detective Bureau, neg. results."

The rules presently provide for discovery of unrecorded statements by a defendant, R. 3:13-3(c)(2), but not that of witnesses. The need to expand the rule to witnesses is exemplified by State v. Clark, 347 N.J. Super. 497 (App. Div. 2002). We are advised that the matter is currently under consideration by the Criminal Practice Committee.

(continued)

(continued)

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A-0827-03T4

February 7, 2006