STATE OF NEW JERSEY v. JULIO C. MARCELO

NOT FOR PUBLICATION WITHOUT THE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-04573-13T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIO C. MARCELO a/k/a

JUAN MARTINEZ, and JULIO MORCELO,

Defendant-Respondent.

_________________________________

October 25, 2016

Submitted October 5, 2016 Decided

Before Judges Nugent and Haas.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-03-0367.

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

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Lillian Kayed, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

A jury found defendant guilty of three counts of first-degree robbery and one count of second-degree possession of a weapon for an unlawful purpose, and a judge sentenced him to an aggregate, extended prison term of twenty-five years. On appeal, defendant argues

POINT I.

THE TRIAL COURT ERRED BY ADMITTING THE IDENTIFICATION TESTIMONY OF [THE SALON OWNER] BECAUSE IT WAS THE DIRECT RESULT OF AN IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT IDENTIFICATION PROCEDURE.

POINT II.

THE FAILURE OF POLICE TO RECORD THE DETAILS OF THE SHOW-UP IDENTIFICATION RENDERED THE OUT-OF-COURT IDENTIFICATION OF DEFENDANT PER SE INADMISSIBLE REQUIRING A NEW TRIAL. (Not Raised Below).

POINT III.

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE A JUROR WAS EXCUSED AND AN ALTERNATE SUBSTITUTED DURING DELIBERATIONS, BUT THERE IS NO RECORD OF THE JURY BEING INSTRUCTED TO BEGIN THEIR DELIBERATIONS ANEW AFTER THE SUBSTITUTION OCCURRED. (Not Raised Below).

POINT IV.

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.

Defendant presents the following arguments in his pro se supplemental brief

POINT ONE.

THE MULTIPLE ERRORS CONTAINED IN THE TRIAL COURT'S INSTRUCTION ON THE ROBBERY COUNTS DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL, THEREFORE THE CONVICTION SHOULD BE REVERSED AND REMANDED FOR A NEW TRIAL.

POINT TWO.

THE ADMISSION OF THE CRIME SCENE VIDEO FOOTAGE RECORDED ONTO A DIFFERENT CAMERA MORE THAN A WEEK AFTER THE CRIME WITHOUT ANY AUTHENTICATION THEREOF DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.

Having considered defendant's arguments in light of the record and controlling legal principles, we reject them with two exceptions. We remand to the trial court to reconstruct the record concerning the court's instructing, or failing to instruct, the jury to begin deliberations anew after a deliberating juror was replaced with an alternate. We also remand for the trial court to amplify its sentencing decision. We retain jurisdiction.

A Hudson County grand jury charged defendant with three counts of first-degree robbery (counts one through three), N.J.S.A.2C:15-1; one count of second-degree possession of a weapon for an unlawful purpose (count four), N.J.S.A.2C:39-4(a); one count of second-degree unlawful possession of a weapon (count five), N.J.S.A.2C:39-5(b); and one count of second-degree certain persons not to have weapons (count six), N.J.S.A.2C:39-7(b). Following his indictment, defendant unsuccessfully moved to suppress two out-of-court identifications. At trial, the jury convicted him of the three first-degree robbery counts and the second-degree possession of a weapon for an unlawful purpose count. The jury acquitted defendant of unlawful possession of a weapon, and the State ultimately dismissed the certain persons not to have weapons count. The court denied defendant's post-verdict motion to set aside the verdict.

On count two, robbery, the court sentenced defendant to an extended twenty-five-year custodial term subject to the No Early Release Act (NERA), N.J.S.A.2C:43-7.2. On counts one and three, the other robbery counts, the court sentenced defendant on each count to a twenty-year custodial term subject to NERA, the sentences to be served concurrently to each other and to the twenty-five-year sentence imposed on count two. The court merged count four, the weapons offense.1

We derive the following facts from the trial record. The robberies occurred late on a November morning in 2010 at a salon in Jersey City. The salon owner, her son, and two Universal Beauty Products (UBP) employees were in the salon at the time.

The robber entered the salon wearing a dark jacket and jeans, his face masked with women's pantyhose. Upon entering, he pulled a gun from his pocket, pointed it at the those present, asked for money, and began rummaging through drawers and the women's handbags. He took jewelry from the salon owner and unsuccessfully attempted to take jewelry from a UBP employee. After taking money from the cash register, defendant grabbed the salon owner's son and struck him on his chest, arm and head with the handle of the gun. The salon owner fainted for a brief period. When the robber left, a UBP employee's husband arrived and he and the salon owner's son searched for defendant for two to three minutes, to no avail. They returned to the salon where police had arrived.

Detective Samuel Santana remained at the salon with the salon owner while Officers Mark Hennessey and Michael Meade drove the salon owner's son around the neighborhood to look for the perpetrator. The salon owner's son spotted defendant walking along a street and identified him as the robber. Defendant was wearing the same pants but had taken off his coat and sweater. Officer Hennessey exited the car, drew his gun, ordered defendant to the ground, handcuffed him, and searched him. The officer found $77, a chain, two charms, a black stocking, and a black do-rag in defendant's pockets. A short time later, police showed the chain and charms to the salon owner, who identified them as her jewelry, taken during the robbery. She subsequently identified defendant at the police station.

The salon owner and her son were confident in their identifications of defendant when they testified at trial. The salon owner testified that the pantyhose over defendant's face ripped during defendant's attack on her son, and she could see through it. She "had already made out his face." Defendant had come to the salon the previous week to buy T-shirts, and she had "done his beard before twice" as she was "a barber as well." The salon owner told the jury she had no doubt defendant was the robber; she had previously met him and she recognized him when she saw him.

The salon owner's son also told the jury he had no doubt defendant was the robber. He was one hundred percent sure. Like his mother, he had seen defendant previously, "in my block where I work, and also where I live." The son had also previously seen defendant in the salon.

During trial, the salon owner's son authenticated a copy of a video recording made from the salon's surveillance cameras and explained what was happening on the video as the masked, hooded man perpetrated the robbery and assault. One of the UBP employees testified, but did not identify defendant.

Defendant did not testify. Based on the State's proofs, the jury found the defendant guilty of the three robbery offenses and a weapons offense. Following sentencing, defendant filed this appeal.

In his first two points on appeal, defendant asserts the salon owner's in-court identification of him was erroneously admitted because it directly resulted from an impermissibly suggestive out-of-court identification procedure and because the police officer who conducted the procedure did not make a sufficiently detailed report of what occurred. We disagree.

During the suppression hearing, Detective Samuel Santana testified about the salon owner's identification of defendant at the police station. The detective became involved after defendant had been arrested. The detective interviewed the salon owner at the police station where defendant had been detained. She told the detective she had been robbed by someone wielding a gun. She also stated she knew the robber as he had visited the salon prior to the incident.

Detective Santana asked the salon owner to step outside. The door to the room had a two-way mirror, and she stood behind the door. Officers brought defendant into the room, and the salon owner "immediately . . . started identifying the individual as being the one involved." According to the detective, the salon owner identified defendant at the police station less than one hour after the robbery.

The court determined the salon owner's identification of defendant, though suggestive, did not create a substantial likelihood of misidentification. The court first explained

Now, the identification at the police station is a little bit different. It took place at the police station. The defendant was in handcuffs. There were police standing around him even when this victim, [the salon owner], saw him through a mirror. So, there are stigmata of suggestiveness, the handcuffs, the fact that it took place in the police station, the fact that he had obviously been arrested. That tips itself in favor of the defense. The question is whether or not, under the circumstances, this was unduly suggestive to the point that it would cause a misidentification, or substantial likelihood of misidentification.

Next, the court noted, among other things, the salon owner's identification of defendant occurred less than an hour after the robbery, and the salon owner knew defendant and had seen him on prior occasions. The court concluded the identification procedure was not so suggestive as to result in a substantial likelihood of misidentification.

When reviewing a decision concerning a showup, "very considerable weight" is assigned to the trial court's "findings at the hearing on the admissibility of identification evidence." State v. Adams, 194 N.J.186, 203 (2008) (quoting State v. Farrow, 61 N.J.434, 451 (1972)). The trial court's findings should not be disturbed if they are supported by sufficient credible evidence in the record. Ibid. Review of the trial court's application of the law to the facts, however, is plenary. State v. Coles, 218 N.J. 322, 342 (2014) (citations omitted).

The identification at issue predated State v. Henderson, 208 N.J. 208 (2011), in which the Court announced new criteria for evaluating out-of-court identifications. Consequently, we review defendant's claim under the two-part test formulated by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977) and adopted by the New Jersey Supreme Court in State v. Madison, 109 N.J. 223, 232-33 (1988). See State v. Jones, 224 N.J. 70, 86 n.2 (2016) (stating "[b]ecause the events underlying this case were decided before the Henderson decision . . . the guidelines established in Manson/Madison are applicable to this matter"); State v. Micelli, 215 N.J. 284, 287 (2013) (noting the Manson/Madison standard applies because the identifications were completed prior to the Henderson decision).

When applying the two-part Manson/Madison test, a court must first decide whether the procedure in question was impermissibly suggestive. Madison, supra, 109 N.J. at 232. If the court finds it was, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification" such that the defendant was denied due process. Id. at 232, 239. This is done by determining "whether there are sufficient indicia of reliability to outweigh the 'corrupting effect of the suggestive identification itself.'" Id. at 239 (quoting State v. Ford, 79 N.J. 136, 137 (1979)). "If the court finds the identification reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence." Id. at 232; see also State v. Herrera, 187 N.J. 493, 503-04 (2006) (stating the two-step analysis requires the court to ascertain whether the identification procedure was impermissibly suggestive and, if so, whether the impermissibly suggestive procedure was nevertheless reliable).

"Reliability is the linchpin in determining the admissibility of identification testimony." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. The court must consider the totality of the circumstances when weighing the suggestive nature of the identification against its reliability. Herrera, supra, 187 N.J. at 504. Analyzing the totality of the circumstances

involves considering the facts of each case and weighing the corruptive influence of the suggestive identification against the "opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the confrontation and the time between the crime and the confrontation." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154 (citing Neil v. Biggers, [ 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972)).]

[Madison, supra, 109 N.J. at 239-40 (citations omitted).]

Exclusion is required "where all . . . the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him . . . ." Farrow, supra, 61 N.J.at 451.

On the other hand, "'[s]how-up' identifications, in which a suspect is apprehended promptly after a crime and brought to the victim, are not prohibited." State v. McNeil, 303 N.J. Super.266, 272 (App. Div. 1997) (citations omitted). On or near-the-scene identifications have been supported because they are likely to be accurate, as they take place before memory has faded, they facilitate fast and effective police action, and they avoid or minimize inconvenience and embarrassment to the innocent. State v. Wilkerson, 60 N.J.452, 461 (1972) (citing United States v. Perry, 449 F.2d 1026, 1032-34 (D.C. Cir. 1971)).

Here, as a result of fast and effective action by both police and the salon owner's son, defendant was apprehended shortly after the robbery. The salon owner identified defendant within an hour of the robbery, before her memory had faded. Perhaps most significantly, the salon owner had seen defendant before the robbery on several if not multiple occasions. Considering the totality of these circumstances, there is no basis for disturbing the trial court's ruling, which is amply supported by credible evidence on the record as a whole.

Defendant also argues the salon owner's identification should have been suppressed because Detective Santana did not make detailed notes of the circumstances surrounding the identification procedure. Defendant did not raise this issue at the suppression hearing. Even if we were to agree with defendant that the detective's reports contained an inadequate record of the identification procedure, the error would be harmless considering the strength of the State's case and the quantum of the State's other inculpatory evidence. R. 2:10-2.

Defendant next contends his conviction should be reversed because the record is devoid of jury instructions directing the jury to begin deliberations anew after a deliberating juror was replaced by an alternate juror. The record on appeal is inconclusive as to whether the court did, or did not, give the instructions. There is no transcript of the court doing so. The record reveals an alternate juror was substituted for a deliberating juror after the deliberating juror was excused for personal reasons. There is no record of the actual substitution taking place or the court's instructions when the substitution occurred. However, following a playback of the surveillance video, the court made this statement

While we're still on the record, I noticed that when the jurors were watching the replay just now that the alternate, who was just added to the jury, . . . was seated more or less in the middle of the front row so that she could see the TV monitor the best. She was clearly extending her neck more than anybody else was, and it certainly appears that they were following my instructions to begin anew.

The State concedes the instruction "may not have been reflected in the transcripts," but argues, based on the court's remarks, "it is likely . . . the judge did read the appropriate instructions when the alternate juror was empaneled since no one corrected him."

Substituting an alternate juror for good cause shown after deliberations have begun does not offend the constitutional guaranty of trial by jury. State v. Miller, 76 N.J.392, 406 (1978). The jury must, however, "be instructed in clear and unequivocal terms that it is to begin its deliberations anew and that . . . 'you are in effect going to have to start over.'" Id.at 407. Such an instruction is "an absolute minimum as a guarantee of the continued integrity of a jury verdict" returned when an alternate juror is substituted after deliberations have commenced. State v. Lipsky, 164 N.J. Super.39, 44 (App. Div. 1978).

In view of the importance of such an instruction to the continued integrity of the jury verdict, we decline to resolve this matter on the existing inadequate record. Under Rule2:5-3(f), "[i]f a verbatim record made of the proceedings has been lost, destroyed or is otherwise unavailable, the court . . . from which the appeal was taken shall supervise the reconstruction of the record. The reconstruction may be in the form of a statement of proceedings in lieu of a transcript."

In addition, "[w]hen the verbatim record is lost, it is the duty of the trial judge as a matter of due process to reconstruct the record in a manner sufficient to provide a reasonable assurance of accuracy and completeness." State v. Bishop, 350 N.J. Super.335, 347 (App. Div.), certif. denied, 174 N.J.192 (2002) (citations omitted). However, this task does not fall to the trial judge alone. Id.at 348 (citations omitted). Rather, the "reconstruction of the record is a 'participatory process' involving the court and counsel." Ibid. (citation omitted). "Defendant also has a duty to attempt to reconstruct the record." Ibid.(citation omitted).

Accordingly, we remand this matter to the trial court to follow the foregoing procedures and reconstruct the record. The court and counsel may utilize CourtSmart if it is available. The process shall be completed within sixty days of the filing of this opinion.

In the final point of his initial brief, defendant challenges his sentence as manifestly excessive and unduly punitive. The court determined defendant was extended-term eligible as a persistent offender; found the aggravating factors enumerated in N.J.S.A. 2C:44-1(a) (1) (nature and circumstances of the offense), (3) (risk of re-offense), (6) (extent of prior criminal record and seriousness of offenses), (9) (need for deterrence), and (12) (victim was a person who defendant knew or should have known was sixty years of age or older, or disabled); and sentenced defendant to a twenty-five year prison term on one of the first-degree robbery counts.

Significantly, defendant does not dispute he was subject to an extended term based on his status as a persistent offender. Rather, he argues: the court's finding of aggravating factor twelve was unsupported by the record; the court erroneously relied on defendant's criminal record as the basis for finding aggravating factor nine; and the court failed to consider, or failed to explain its reason for rejecting, a mitigating factor.

We review a trial court's sentence under a deferential standard, being careful not to substitute our judgment for that of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989). We will

affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'

[State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

When we review a trial court's determination of aggravating and mitigating factors, we will remand for resentencing if the court "fails to provide a qualitative analysis of the relevant sentencing factors on the record," or "the trial court considers an aggravating factor that is inappropriate to a particular defendant or to the offense at issue." Ibid. (citations omitted). The aggravating and mitigating factors found by the trial court must be based on "competent, reasonably credible evidence." Roth, supra, 95 N.J. at 363.

Here, it does not appear the trial court violated the sentencing guidelines, and defendant's sentence does not shock the judicial conscience in light of the record. The trial court did, however, find one aggravating factor that does not appear to be supported by the record, namely, N.J.S.A. 2C:44-1(a)(12) (defendant knew or should have known a victim was age sixty or older).2 Although in the absence of mitigating factors this may be a meaningless error, in view of the extended term sentence and the court's reasoning for imposing the sentence, we remand for the court to amplify the record by explaining the basis for its finding.

If the court's finding of aggravating factor twelve has no basis in the record, the issue needs to be addressed. On remand, the court shall amplify the record by explaining the basis for finding aggravating factor twelve. If there is no support in the record for this finding, the court shall explain what effect, if any, the oversight had on the court's sentencing analysis. If resentencing is appropriate, the court shall resentence defendant. These proceedings shall also be concluded within sixty days of the filing of this opinion.

Defendant's remaining arguments concerning his sentence, as well as the arguments in his supplemental brief, are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed in part and remanded for further proceedings consistent with this opinion. The remand proceedings shall be completed within sixty days. We retain jurisdiction.

1 Defendant had been charged in a separate indictment with three controlled dangerous substance (CDS) offenses. Following his conviction of the robbery and weapons offenses, he pled guilty to one count of the separate indictment, possession of a CDS, heroin, N.J.S.A. 2C:35-10(a)(1), in exchange for the State's recommendation of a five-year custodial term to be served concurrently with his sentences on the robbery offenses. Defendant was sentenced in accordance with the plea bargain. The CDS sentence is not at issue on this appeal.

2 The State appends to its brief a police report containing the age sixty or older of one of the victims. We assume the State obtained this document from the pre-sentence report. The trial court, however, did not reference the document when sentencing defendant. Assuming the document was the basis for the court's finding, the court did not explain either how defendant knew the victim was age sixty or older or why defendant should have known the victim was age sixty or older.