On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Approved for Publication November 20, 1997.
Before Judges Long, Stern, and Kleiner. The opinion of the court was delivered by Kleiner, J.A.D.
The opinion of the court was delivered by: Kleiner
The opinion of the court was delivered by
On September 11, 1993, defendant Sydney Matarama, then sixteen and eleven-months of age, was arrested *fn1 and charged with juvenile delinquency, N.J.S.A. 2A:4A-23, for conduct, which if committed by an adult, would constitute carjacking, in violation of N.J.S.A. 2C:15-2a(1). On October 13, 1993, the State filed a motion to transfer the pending Family Part complaint to the Law Division where defendant, subsequent to indictment, would stand trial as an adult. The State's motion was ultimately granted on March 29, 1994.
Thereafter, defendant and Rudy Perdomo were indicted and charged as follows: first-degree carjacking, in violation of N.J.S.A. 2C:15-2a(1), (count one); first-degree armed robbery, in violation of N.J.S.A. 2C:15-1a(1), (count two); first-degree kidnapping, in violation of N.J.S.A. 2C:13-1b(1) and (2), (count three); third-degree aggravated criminal sexual contact, in violation of N.J.S.A. 2C:14-3a, (count four); third-degree terroristic threats, in violation of N.J.S.A. 2C:12-3b, (count five); third-degree possession of a weapon, a T-bar auto stick shift, for purposes to use same against the person of another, in violation of N.J.S.A. 2C:39-4d, (count six); and fourth-degree unlawful possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have, in violation of N.J.S.A. 2C:39-5d, (count seven). *fn2
Tried to a jury, defendant was convicted on all counts with the exception of count four, charging aggravated criminal sexual contact. *fn3
Defendant was sentenced on count one, carjacking, to a custodial term of twenty years with a five-year period of parole ineligibility. Counts five, six, and seven were merged with count two, and count two was merged with count one. On count three, kidnapping, defendant was sentenced to a custodial term of twenty years to be served concurrent with the sentence imposed under count one. Appropriate statutory penalties were imposed on counts one and three. *fn4
On appeal, defendant raises six points of error with several subparts as follows:
THE TRIAL JUDGE ERRED IN REFERRING DEFENDANT TO THE LAW DIVISION WHERE DEFENDANT COULD NOT PRESENT EXPERT REPORTS AND TESTIMONY, AND WHERE THE REASONS FOR REFERRAL DID NOT OUTWEIGH THE POSSIBILITY DEFENDANT COULD BE REHABILITATED.
A. The trial Judge erred in not granting an adjournment and in suppressing all expert reports and testimony.
B. The court erred in ruling that the interests of the public required waiver where defendant's role or dangerousness was never clearly ascertained. (Phase I).
C. The trial Judge erred in ruling that the reasons for referral did not outweigh the possibility that defendant could be rehabilitated. (Phase II).
D. The trial Judge erred in ordering defendant referred to the Law Division on the complaint of carjacking when the basis for the referral was that defendant was guilty only of second-degree robbery.
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE REFERRAL HEARING. (Not raised below)
THE TRIAL JUDGE'S CHARGE TO THE JURY WAS FLAWED DEPRIVING DEFENDANT OF A FAIR TRIAL. (Not raised below)
A. The trial Judge erred in instructing the jury that the object of the theft in carjacking could be the car keys rather than the car itself.
B. Robbery, assault and theft of the person should have been charged as lesser-included offenses of carjacking. (Not raised below)
GIVING THE STATE THE BENEFIT OF ALL LEGITIMATE INFERENCES FROM THE RECORD DEFENDANT SHOULD HAVE BEEN ACQUITTED OF KIDNAPPING.
THE PROSECUTORS COMMENTS THAT DEFENDANT'S DECISION TO TESTIFY PREJUDICED THE STATE'S CASE UNDULY INFLUENCED THE JURY RESULTING IN AN UNFAIR TRIAL. (Not raised below)
DEFENDANT'S SENTENCE TO TWENTY YEARS WITH A FIVE-YEAR PERIOD OF PAROLE INELIGIBILITY WAS EXCESSIVE.
Defendant's appeal challenges aspects of the juvenile waiver process, as well as an issue of first impression requiring an interpretation of the carjacking statute, N.J.S.A. 2C:15-2a(1). Both issues require Discussion. However, after a thorough review of the record, we conclude that defendant's arguments lack merit, and thus we affirm defendant's conviction.
After attending a party at the home of a relative, Flora Gonzalez arrived at her residence, near the intersection of 64th Street and Boulevard East, in West New York, New Jersey, at 3:45 a.m. on September 11, 1993. Gonzalez parked her automobile, placed her automobile keys in her back pocket, and proceeded toward her front door with her house keys in her hand. As she neared her front door, a man, later identified as defendant, stepped in front of Gonzalez and demanded that she give her keys to him. Gonzalez screamed. Her assailant struck the right side of her forehead with a metal object. Gonzalez attempted to struggle with her assailant but was struck again and fell to the ground.
A second man, later identified as Perdomo, approached and began to rifle through Gonzalez's pockets. He demanded, "Give me the car keys or we'll kill you." This assailant then tore Gonzalez's blouse, and pulled her bra up around her neck, exposing her breast. During the struggle, Gonzalez's house keys were taken from her.
The first assailant dragged Gonzalez to the end of her building into a small alley. The assailant then fled. Gonzalez ultimately testified that after her assailant fled, she immediately saw a police officer approaching her.
According to Officer Conversano, while on routine patrol, he was flagged down by a passing motorist. He immediately proceeded to the intersection of 64th and Boulevard East. He observed a woman being assaulted by two men. He dispatched this information to police headquarters, exited his vehicle, and approached the scene. He described the lighting in the area as "very good." He noted that one assailant was holding an object in his fist, which "looked a little like a stick or a bar or something." When Conversano was ten to fifteen feet from the assailants, they noticed him and fled through the alleyway.
As a result of Conversano's radio dispatch, a number of officers arrived at the scene. Conversano provided the officers with a description of the assailants. The details of the ensuing investigation in the neighborhood were explained at trial. We need not review these extensive details.
Suffice to say, one detective saw a male running on 65th Street. That detective exited his vehicle and caught the male, defendant, who immediately said, "I didn't do nothing to the lady, what are you charging me with." Defendant was searched and the detective found a metal gear shift in his pocket.
Another officer climbed a fire escape to the roof of a nearby building. He observed a barefoot *fn5 male crouched in a corner of the roof. This individual, co-defendant Perdomo, was apprehended and ...