STATE OF NEW JERSEY v. ALONZO B. HILL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1195-05T51195-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALONZO B. HILL,

Defendant-Appellant.

_________________________________

 

Submitted October 30, 2006 - Decided November 20, 2006

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

04-01-00011.

Paul W. Bergrin, attorney for appellant (Robert Carter Pierce, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On April 8, 2005, a jury convicted defendant, Alonzo Hill, of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count One); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Count Two); first-degree robbery, N.J.S.A. 2C:15-1 (Count Three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Five).

Defendant was sentenced on September 20, 2005. The trial judge merged the convictions for conspiracy to commit robbery, aggravated assault, and possession of a weapon for an unlawful purpose with the robbery conviction. The judge imposed a seventeen-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act for the first-degree robbery conviction. A concurrent five-year term was imposed for the unlawful possession of a weapon conviction. A five-year period of parole supervision was imposed along with appropriate fines and penalties. Defendant appeals and we affirm.

On July 3, 2003, at approximately 11:00 a.m., defendant drove his nephew, N.G., and his nephew's friends, Omar and "T," from defendant and N.G.'s home in Brooklyn to a bakery/ luncheonette called "Casa Do Pao," located at 54 Van Buren Street in Newark. Defendant was twenty-five years old. Omar provided directions while defendant drove. When they arrived, defendant parked and waited in the car by himself.

Sergio Ricardo Romaneto, the nephew of the owner of Casa Do Pao was sitting in his office counting the money collected from the bakery's other locations. An unarmed man wearing a white t-shirt around his head opened the door to Romaneto's office and pointed at Romaneto and the safe located below his desk. Although Romaneto speaks only Portuguese and could not comprehend what the man was saying, he understood from the man's gestures and the circumstances that the man wanted money. Speaking in Portuguese, Romaneto told the man that he did not have the key to the safe and threw a chair at the man. The unarmed man left and returned with another man who had a t-shirt around his head and a black gun. They brought Romaneto into the kitchen where the other employees were kneeling on the ground. In Portuguese, Romaneto told them to fight back because he thought the men were robbing them with a toy gun, which often occurs in Brazil. The unarmed man remained in the office and took a computer bag with a laptop inside of it as well as a laptop battery. The incident was caught on surveillance video cameras inside the bakery.

As the perpetrators left, the male employees ran outside after them, screaming in Portuguese, "It's a robbery, it's a robbery." Romaneto saw the two men remove their t-shirts from their heads and get into a black car with defendant sitting at the wheel. The employees screamed at the driver of a passing Ford Ranger pickup truck to block defendant's car, however, the two cars only "nicked" each other. The perpetrators exited the car and began to fight with the employees. The man who had the gun while inside the bakery hit Romaneto on his back, near his upper left shoulder. N.G. drove away, while the other perpetrators ran off. As defendant tried to leave, the employees surrounded him. Defendant reacted in a threatening manner and the employees stood back. Defendant escaped and reconnected with N.G., who drove away in the vehicle.

Romaneto saw police officers on the street and gave them the black car's license plate number. Officer Juan Vazquez of the Newark Police Department found the car parked a few blocks away. Vazquez found defendant sitting in the driver's seat with N.G. in the passenger seat. The police brought defendant and N.G. to police headquarters where Romaneto identified them.

Meanwhile, Officer Amaral investigated a report of a loaded black nine-millimeter handgun in the lock-back position, lying on its side in a resident's garbage can at 55 Ferguson Street, two blocks from the bakery. The weapon was found and secured. At the scene, defendant was advised of his Miranda rights and placed under arrest. At police headquarters, defendant gave a statement to Officer Patrick DiMeola. Defendant claimed that his nephew and Omar wanted him to drive them to the bakery. They offered him fifty dollars. He did not ask why. Defendant confirmed that Omar had a black gun. When he reconnected with N.G., he told his nephew to park the car because the victims had the plate number. N.G. told defendant that Omar tossed the gun. Defendant identified the weapon that was recovered as the weapon Omar used in the robbery. Defendant indicated that N.G. and Omar knew about Casa Do Pao because they both worked at a bakery in New York that made deliveries to the bakery in Newark. Defendant ended his statement of the events saying, "I wish this never happened."

At trial, defendant testified that the men involved in the robbery did not talk about it before it happened; he did not know they were going to the bakery to commit a robbery; and he did not know Omar had a gun prior to seeing it after the robbery. He stated that the first time he saw the gun was when Omar was running back to the car with it. He also contradicted Vazquez's testimony, saying that when they were found in the parked car, N.G. was sitting in the driver's seat and he was in the passenger seat.

Prior to defendant's trial, N.G., who was seventeen at the time of the offense, pled guilty as a juvenile to acts which, if committed by an adult, would constitute first-degree robbery, N.J.S.A. 2C:15-1, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. At his August 5, 2003, plea hearing, N.G. agreed to give a factual basis regarding defendant's involvement. N.G. testified that defendant drove him to Newark where N.G. entered a bakery at 54 Van Buren Street, brandished a weapon, took a laptop, and went back to the car where his uncle was sitting. The following colloquy occurred concerning defendant's knowledge:

[N.G.'s COUNSEL]: With regard to your uncle traveling with you in this black Nissan Altima going . . . from Brooklyn to New Jersey, going to this bakery . . . you and he spoke about the plan that you had in order to commit a robbery there using a weapon. Is that correct?

[N.G.]: Yes.

[N.G.'s COUNSEL]: He was aware that you had the weapon at the time that you were going there. Correct?

[N.G.]: Yes.

[N.G.'s COUNSEL]: He was also aware that you were going to this location in order to commit the robbery. Is that correct?

[N.G.]: Yes.

The Family Part judge accepted the plea and the State's recommendation of two years at the Training School for Boys.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT ERRED BY INSTRUCTING THE JURY WITH A CLAWANS CHARGE AGAINST MR. HILL FOR HIS FAILURE TO CALL N.G. AS A DEFENSE WITNESS.

POINT II

THE TRIAL COURT ERRED BY NOT GRANTING MR. HILL'S MOTION FOR A JUDGMENT OF ACQUITTAL ON THE FIRST DEGREE ROBBERY CHARGE BECAUSE THE VICTIM BELIEVED THE DEADLY WEAPON WAS A TOY HANDGUN.

POINT III

THE TRIAL COURT LACKED JURISDICTION OVER MR. HILL BECAUSE THE INDICTMENT WAS NOT A "TRUE BILL." THE INDICTMENT WAS NOT ENDORSED BY THE JURY FOREPERSON AS IS REQUIRED BY R. 3:7-3(a), RENDERING MR. HILL'S SENTENCE ILLEGAL.

POINT IV

THE SENTENCE IMPOSED WAS ILLEGAL AND MANIFESTLY EXCESSIVE.

Defendant asserts that the judge erred in giving the jury a Clawans charge. Voicing defendant's objection to the State's request for the jury instruction because defendant did not produce N.G., the following colloquy took place:

THE COURT: I just wanted to complete the discussion of whether a Clawans charge is appropriate to give in this case. . . . And . . . counsel are aware by virtue of the existence of a transcript . . . taken . . . on August 5th, 2003, concerning [N.G.'s] involvement in the instant offense and his sworn statement concerning your client's involvement in the offense.

. . . .

I'm satisfied that the juvenile [N.G.] is no longer under the supervision of the court. As such, that he would not have been prejudiced if he was called in this proceeding. He had no right to remain silent since he was not a charged defendant.

. . . .

[DEFENSE COUNSEL]: Your Honor, we will not be able to call the witness. We do not know where he is located at this point in time.

When my client indicated the last he heard he believed he was in Alabama. He has not lived with my client for some period of time. He got married in the interim apparently. This incident, it's occurred nearly two years ago now. And the last time he spoke to him, according to my client's testimony, was at best two months ago. And without knowing where he is it would be very hard to produce him. Also the fact that he is in Alabama at this point in time would make it very difficult to produce him in a timely fashion before this court, even if we were to know his exact and precise location.

. . . .

THE COURT: Was there any effort made during the conversation two months ago to verify his address?

[DEFENSE COUNSEL]: During the pendency of this case, efforts were made to contact and interview [N.G.]. However, while he had pled, his case was not technically disposed of during the initial pendency of this case, which is why we were not permitted to speak to him at that point in time. And since then, as your Honor is aware with the history of this case, it has had numerous trial dates which very frequently in advance we knew it wasn't going.

. . . .

THE COURT: Unfortunately for your position, counsel, the court is in a unique position to be satisfied that had he been produced he would not have been favorable to you. Normally we're not in that position, but the official transcript of the [plea] and the testimony that he gave before the court is indicative of the fact that had he been called to testify, not only do we suspect it would not be favorable to you, it would not have been. . . . Normally in Clawans cases we can only infer that from certain facts, namely the general sense that the witness might have said something in support of your client's claim that he had no knowledge of the robbery before the fact. But unfortunately this witness has testified before a court of law and has given sworn testimony . . . to the exact opposite. So there's no question that his production would not have been of assistance to your client under these circumstances.

. . . .

[DEFENSE COUNSEL]: . . . I did want to place on the record . . . I did get a chance to obtain . . . information from his family. I believe his cousin who is here, who also is [N.G.'s] cousin . . . [and] his uncle . . . indicated that they do not know where [N.G.] is at this time and they do not believe they could get a location for him.

THE COURT: Are you asking to call the witness?

[DEFENSE COUNSEL]: I'm placing for the record that I don't believe that I can call this witness.

THE COURT: No, I'm asking are you asking to call a witness who can confirm your efforts to obtain the witness prior to trial and your inability to do so. Because the question is . . . not what position you happen to be in as we speak, but what efforts you made prior to trial to have the witness available.

[DEFENSE COUNSEL]: Right. And no, your Honor, I'm not asking to do that.

. . . .

THE COURT: Now, I am satisfied that the inference is strong here, primarily because we have available to us something that we would not normally have, namely the sworn testimony of this very witness exactly to the contrary of purportedly what you would call him to say. . . .

I'm satisfied under these circumstances, based upon, first of all, his family relationship with the defendant, that he is a witness that is clearly uniquely within your control. Second of all, that if he were to testify consistently with what your client said, that clearly all other things being equal, would have been helpful to him and superior to his own testimony, particularly since he has acknowledged his own guilt of the offense. The only wrinkle that comes in is if he said the exact opposite of your client's knowledge of what was going on. The fact that as recently as two months ago he was spoken to and you have said nothing that leads me to believe that any effort was made whatsoever to either confirm his present location and/or to attempt to obtain his production for the trial, I have heard nothing to the contrary that any effort has been made to do that. Obviously you cannot know that which you do not seek to know. So you cannot then turn around and use that as an excuse for non production.

And finally, no one has attempted to convince me that he was asked to come and refused to do so.

The court finds that the inference is appropriate in this case. The Clawans charge will be given and the prosecutor will be permitted to comment to that effect during her summation.

A Clawans charge allows the jury to draw an inference that the missing witness would have had evidence unfavorable to the party who would reasonably have been expected to produce the witness. Clawans, supra, 38 N.J. at 170-71. Those circumstances for permitting the charge were enunciated in State v. Hickman, 204 N.J. Super. 409 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986):

(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue, and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.

[Id. at 414 (emphasis added); see also State v. Wilson, 128 N.J. 233, 244 (1992) (stating witness is within a party's power when that party has superior knowledge of the witness's existence or identity, or what testimony might be expected, or where a certain relationship, such as employer-employee, exists).]

If the witness is available to both parties, the court must weigh the strength of the inferences against each party based upon the circumstances of the case, including the witness's relationship to each party. Clawans, supra, 38 N.J. at 171-72.

Defendant acknowledged that N.G.'s availability grew out of his familiar relationship with N.G. He asserts that N.G. was equally available to the State because it likewise had control or power over N.G. via its relationship with N.G. as a result of the plea agreement. Defendant posits that the State's relationship with N.G. grew out of the plea bargain in which N.G. agreed to and gave a sworn statement inculpating defendant. The State counters that N.G. was "uniquely within [defendant's] control" because defendant knew he was living somewhere in Alabama and had made contact with him two months before.

Here, the judge never addressed whether N.G. was "available to that party both practically and physically." Hickman, supra, 204 N.J. Super. at 414. Defendant did not know of N.G.'s location, only that he believed through information from another relative that N.G. was in Alabama. We are satisfied that the record reflects that defendant was unaware of N.G.'s address or exact location. We are equally satisfied that N.G.'s agreement with the State to give testimony inculpating defendant in return for a juvenile disposition, thus avoiding potential jail-time if treated as an adult under N.J.S.A. 2A:4A-26a(2)(a), created a special relationship between N.G. and the State, which established a certain amount of control or power on the part of the State over the unavailable witness. The judge's failure to give weight to those two circumstances, in determining to give the Clawans charge, in our view, was error. That being said, however, we also conclude that any error in giving the Clawans charge was harmless.

Clawans does not create the adverse inference, rather it recognizes that a reasonable fact finder at trial could draw such an inference. State in Interest of J.L.W., 236 N.J. Super. 336, 345 (App. Div. 1989), certif. denied, 126 N.J. 387 (1991). Here, the judge explained to the jury that "[y]ou alone decide whether the facts and the circumstances shown by the evidence support[] an inference . . . keeping in mind that the burden of proof is upon the State to prove all of the elements of the crime beyond a reasonable doubt." Moreover, the other evidence of defendant's guilt was overwhelming. Thus, the Clawans instruction to the jury was harmless beyond a reasonable doubt. State v. Alston, 70 N.J. 95, 98 (1976). Simply stated, the instruction under these circumstances did not have a clear capacity to produce an unjust result. R. 2:10-2.

Defendant next contends that the judge erred in denying his motion for acquittal on the first-degree armed-robbery charge because the State failed to prove that the victim reasonably believed the gun was a deadly weapon. Defendant bases his contention on Romaneto's belief that the handgun was a toy. Defendant's contention lacks merit. A person commits first-degree robbery when he or she "in the course of committing the theft . . . is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. A "deadly weapon" is defined as

any firearm or other weapon . . . which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.

[N.J.S.A. 2C:11-1c.]

Defendant's contention ignores the plain meaning of the statute, which states that robbery shall be a crime of the first-degree where the actor uses or threatens immediate use of an actual deadly weapon or where the victim reasonably believes the weapon is deadly. Here, the defendant himself identified the gun used in the robbery. He also stipulated that it qualified as an operable firearm as defined by the statute. Viewing the State's evidence in its entirety and giving it all favorable inferences, a reasonable jury could find defendant guilty beyond a reasonable doubt. R. 3:18-1; State v. Reyes, 50 N.J. 454, 459 (1967). The trial judge correctly denied defendant's motion to acquit.

Finally, defendant contends that the sentence was excessive because the judge participated in unconstitutional fact finding as enunciated in State v. Natale (Natale II), 184 N.J. 458 (2005) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), in assessing the aggravating factors and imposing a sentence above the presumptive term. First and foremost, at the time the judge sentenced defendant, there were no longer any presumptive terms. See Natale II, supra, 184 N.J. at 489. Moreover, after consideration is given to defendant's remaining contentions and supporting arguments, we are satisfied that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. Ghertler, 114 N.J. 383, 393 (1989); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

 

N.J.S.A. 2C:43-7.2.

There is no sign on the front of the building to identify the bakery because that location is the central kitchen for all of the Casa Do Pao locations.

The car belonged to defendant's daughter's mother, but he had permission to use it.

Romaneto is now a manager.

At trial, Romaneto remembered only three men being involved. During his statement to the police, however, he stated that there had been four men involved.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

By letter dated April 5, 2006, defendant withdrew his Point III argument because he received a certified copy of the indictment from Essex County Criminal Records, which had been endorsed by the Grand Jury Foreperson.

State v. Clawans, 38 N.J. 162 (1962).

(continued)

(continued)

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A-1195-05T5

November 20, 2006