Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Cotto

February 1, 2005

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NATHAN COTTO, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, defendant, Nathan Cotto, claims, as reversible error, that the trial court incorrectly instructed the jury on the State's burden on the issue of identification; that the trial court improperly admitted certain hearsay statements; and that the trial court erred by precluding evidence of third-party guilt.

On a February evening in 2000, Tina Mutcherson was staying at the apartment of her boyfriend in Vineland, New Jersey. She saw a man trying to get into a neighboring apartment through a window. Tina's sister, Tiffany Mutcherson, lived in that apartment and was baby-sitting Tina's two children at the time.

When Tina went next door to warn her sister of the intruder, another man standing in the hallway struck Tina in the back of the head with a gun. That man, later identified as Cotto, was wearing blue jeans and a black ski mask. After he pushed Tina into Tiffany's apartment, the first man, wearing a black ski mask and gray sweatpants, followed Tina and Cotto through the door. That assailant also brandished a handgun.

The two assailants directed Tiffany, Tina, and Shanequa, Tina's daughter, into Tiffany's bedroom where Tina's son, Allen, was sleeping. The man wearing the gray sweatpants threatened to kill Allen after he began crying. The men asked the sisters, "Where's the money at?" When Tiffany replied that she did not have any money, the assailant wearing gray sweatpants punched her. Cotto removed Tina's jewelry, took a couple dollars from Shanequa, and pocketed forty-two dollars found on Tiffany's bureau.

At some point during the robbery, Cotto's mask moved, and Tiffany saw his eyes and nose. Based on that observation and the sound of his voice, Tiffany recognized the robber as Cotto, her ex-boyfriend. Cotto also asked Tiffany, "Where's the can at, where's the tin can at?", in an apparent reference to a tin can in which Tiffany stored her waitress tips when she worked at a casino. Tiffany did not confront Cotto because she feared that he would harm her if he knew she recognized him.

Cotto found Tiffany's pocketbook and a picture of Tiffany with her new boyfriend. Cotto showed the other man the picture and commented, "Look at this sh**." The other assailant kicked Tiffany, who was pregnant, in the stomach.

When the two men decided to leave, they wanted to take Allen with them. During this exchange, Cotto referred to Allen by his first name, leading Tina to believe that the robber was familiar with her and her sister. Tiffany insisted that the assailants take her with them instead. They agreed and Tiffany walked with the robbers for about one-half mile before they released her. They threatened to kill her if she called the police.

When Tiffany returned to the apartment, she told Tina that the man wearing the blue jeans was Cotto. Tiffany called the police and Tina called her boyfriend, Pete Thomas. Thomas arrived with Tiffany's and Tina's cousin, Terry Morgan. Tiffany told them that Cotto and another man had robbed them. Thomas and Morgan went to look for Cotto at a nearby bar, the Citizen's Club.

Officer Angel Minguela and Seargeant Harry Swain responded to the crime scene approximately fifteen to twenty minutes after the robbery ended. They described Tiffany's apartment as "ransacked." Minguela interviewed Tina, whom he described as a "nervous wreck." Swain spoke with Tiffany, who appeared "very upset" and was "shaking uncontrollably." At that time, Tiffany told Swain that one of the robbers was Cotto.

Thomas, Tina's boyfriend, returned to the scene and spoke to the police. Based on that conversation, the police and Tina went to the Citizen's Club to look for Cotto. The Club, however, had closed by the time they arrived. The police took the sisters to the police station where they gave statements. In her statement, Tiffany again named Cotto as one of the robbers.

Cotto was tried and convicted on two counts of first-degree robbery and other crimes. The trial court sentenced Cotto as a persistent offender to a fifty-year extended term, subject to a NERA parole disqualifier of forty-two and a half years. The Appellate Division affirmed the convictions in an unpublished opinion. It remanded for re-sentencing, however, ordering the trial court to compute the NERA disqualifier based not on the extended term, but on Cotto's twenty-year base term. The trial court resentenced Cotto accordingly.

This Court granted Cotto's petition for certification.

HELD

The trial court did not commit reversible error in failing to give a detailed identification instruction, in admitting hearsay statements, or in precluding evidence of third-party guilt.

1. Although Cotto did not object to the jury charge at trial, he argues that the trial court erred in not specifically instructing the jury on the issue of identification. When identification is a key issue, the trial court must instruct the jury on identification, even if a defendant does not make that request. Although the trial court did not provide a detailed identification instruction here, it did instruct the jury on the State's burden of proving beyond a reasonable doubt that Cotto was the individual that committed the crime. In addition, the quality of the State's evidence corroborating the identification rendered harmless any deficiency in the instruction. (pp. 6-10)

2. Cotto maintains that the trial court impermissibly applied the excited utterance exception to admit the statements that Tina and Tiffany made to the police. The excited utterance exception to the hearsay rule allows a trial court to admit certain out-of-court statements relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate. N.J.R.E. 803(c)(2). In State v. Branch, __ N.J. __ (2004), also decided today, the Court expressed concerns regarding the expansion of the rule and case law that has paid only nominal attention to the opportunity to deliberate or fabricate element. In this case, because the sisters had an opportunity to deliberate or fabricate, their statements to police should not have been admitted at trial. Although it was error to permit the police officers to testify concerning the sisters' statements, Cotto suffered no significant harm from that testimony. Here, unlike in Branch, the identification testimony was considerably more substantial because one of the victims personally knew Cotto from a previous romantic relationship. In addition, Cotto had the opportunity to cross-examine the sisters when they testified. The admission of the testimony was harmless error. (pp. 10-16)

3. Cotto contends that the trial court violated his Sixth Amendment rights when it precluded his proffer of thirdparty guilt. Cotto asserted on the day of trial that while he was in police custody, he received information from a fellow inmate, a blood relative of Terry Morgan and Tina and Tiffany Mutcherson. That information allegedly implicated Terry Morgan and another individual in the robbery. The inmate refused to testify at trial. The trial court denied Cotto's proffer of third-party guilt because it was speculative and based on hearsay. The proffered evidence does not support even the mere conjecture of third-party guilt. In addition, Cotto failed to notify the State that he planned to cast blame on a specific third-party in advance to allow the State to investigate the claim. (pp. 16-20)

4. Finally, Cotto argues that the trial court violated his right of confrontation when it allowed Tina to testify about statements that Pete Thomas, her boyfriend, made to police on the night of the robbery. Those statements related Thomas's observations of Cotto at the Citizen's Club wearing the clothing described by Tina. Defense counsel initially objected to the testimony, but then agreed that the State could ask Tina why she and the police went to the Citizen's Club. In the overall context of the trial, the Court cannot conclude that the questions were clearly capable of producing an unjust result. The prosecutor also recounted that testimony during summation. Any prejudice suffered by Cotto did not have the capacity to deny him a fair trial. (pp. 20-25)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE and RIVERA-SOTO join in JUSTICE ZAZZALI's opinion.

The opinion of the court was delivered by: Justice Zazzali

Argued September 27, 2004

A jury convicted defendant of robbery, burglary, terroristic threats, and other charges after he and an accomplice burglarized his ex-girlfriend's apartment while she, her pregnant sister, and her young niece and nephew were present.

In this appeal, defendant claims, as reversible error, that the trial court incorrectly instructed the jury on the State's burden on the issue of identification; that the trial court improperly admitted certain statements as excited utterances; that the trial court erred when it precluded defendant's proffered evidence of third-party guilt; and that the trial court improperly allowed testimony, and the prosecutor's use of that testimony in summation, regarding certain out-of-court statements made by a non-testifying witness.

For the reasons discussed more fully below, we do not find reversible error in the trial court proceedings.

I.

On a February evening in 2000, Tina Mutcherson was staying at the apartment of her boyfriend in Vineland, New Jersey. At approximately 11:30 p.m., she saw a man trying to get into a neighboring apartment through a bedroom window. Tina's sister, Tiffany Mutcherson, lived in that apartment and was baby-sitting Tina's two children at the time. When Tina went next door to warn her sister of the intruder, another man standing in the hallway struck Tina in the back of the head with a gun. That man, later identified as defendant, was wearing blue jeans and a black ski mask. After he pushed Tina into Tiffany's apartment, the first man, wearing a black ski mask and gray sweatpants, followed Tina and defendant through the door. That assailant also brandished a handgun. When Tina's daughter, Shanequa, began to cry, the two men directed Tiffany, Tina, and Shanequa into Tiffany's bedroom where Tina's son, Allen, was sleeping. The man wearing gray sweatpants threatened to kill Allen after he began crying.

Once in the bedroom, the two men asked the sisters, "Where's the money at?" When Tiffany replied that she did not have any money, the assailant wearing gray sweatpants punched her. Defendant removed Tina's jewelry, took a couple of dollars from Shanequa, and pocketed forty-two dollars sitting on Tiffany's bureau. Defendant then led Tiffany, Shanequa, and Allen into the living room and ordered them to sit down.

When the robber wearing blue jeans returned to the bedroom, the mask had moved, and Tiffany saw his eyes and nose. Based on that observation and the sound of his voice, Tiffany recognized the robber as defendant, her ex-boyfriend. Tiffany had dated defendant for two to three months during the preceding summer. Tiffany testified that, from time to time, he had stayed at her apartment for more than one night while they maintained a dating relationship. Defendant also asked Tiffany, "Where's the can at, where's the tin can at?", in an apparent reference to a tin can in which Tiffany stored her waitress tips when she worked at a casino. Tiffany did not confront defendant because she feared that he would harm her if he knew that she recognized him.

The men refused to leave until they "got something." Defendant found Tiffany's pocketbook and a picture of Tiffany with her new boyfriend. Defendant showed the other man the picture and commented, "Look at this sh**." The other assailant kicked Tiffany, who was pregnant, in the stomach. Tina begged him to stop and told him that Tiffany was ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.