February 8, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS GARCIA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 04-09-0638, 03-02-0067, and 03-02-0068.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2006
Before Judges Winkelstein and Fuentes.
Defendant Luis Garcia was tried before a jury and convicted of second-degree conspiracy to commit an armed burglary, N.J.S.A. 2C:5-2; N.J.S.A. 2C:18-2a(1) and N.J.S.A. 2C:18-2b(2); second-degree attempted armed burglary, N.J.S.A. 2C:5-1; N.J.S.A. 2C:18-2a(1) and N.J.S.A. 2C:18-2b(2); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; second- degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) and fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f. Immediately after this verdict, defendant was tried before the same jury and convicted of second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7b. After the conclusion of both of these trials, defendant pled guilty, pursuant to a negotiated plea agreement, to one count of third-degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5). The court sentenced defendant to an aggregate term of seven years, with an eighty-five-percent parole ineligibility period pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed the mandatory fines and penalties.
After a careful review of the record, and in light of prevailing legal standards, we affirm. These are the facts necessary to address the legal issues raised in this appeal. The State's evidence in support of defendant's conviction consisted in large part of the testimony of arresting officer, Sergeant Edward Byrnes, of the Bernards Township Police Department. Byrnes testified that after making a lawful motor vehicle stop,*fn1 he seized a fully loaded .38 caliber Smith and Wesson five-shot revolver from the backseat of the Ford Focus in which defendant was riding. Including the driver, there were a total of four occupants in the car. Defendant was one of two passengers seated in the rear of the vehicle. According to Byrnes, defendant voluntarily blurted out that the handgun belonged to him.
The State also presented a statement taken from defendant shortly after his arrest.*fn2 The police took two statements from defendant. The first was not recorded. The second was recorded, and a transcript of the questions posed by the interrogating officer and responses given by defendant is part of the record before us. The jury thus heard the following exchange:
Q: OK and Luis, we were talking about what all went down tonight as far as you and the other people in the car and how this all came about. Why don't we start with how you first became aware of what you guys were going to do tonight. Who came to you?
A: Carlos [the front seat passenger] came to my house, and uh, told me he had an idea how to get money and I need money so I roll with it.
Q: OK and what was his idea?
A: We were going to go in some houses and take mostly safes, jewelry, money.
Q: OK and why did he come to you specifically?
A: Because he knew I had a gun.
Q: OK did he ask you to bring that along?
A: He asked me about it. He asked me if I still had it, so I told him that I'd bring it with me.
Q: OK so you guys are rolling in the car and so, you got this gun with you. What kind of discussion [is] going on in the car between you guys?
A: Well we's talking about not shooting anybody and how we were going to go in a house and get money that was supposed to be, supposed to be in the houses.
Q: OK and so then you guys [referring to all four of the car's occupants] drove to somebody else's house. Who was that? Did you know him?
A: No but, not until after the fact.
Q: OK the guy that was sitting in the back seat with you his first name is like, Esteban?
A: Yeah that's my understanding, yeah.
Q: OK, he was along why?
A: He was directing, he knew, he worked up here, he worked in, ahh, area before so he's the reason I guess he came along he was directing good information about how many people live in them houses, houses that he thought were beneficial to go into.
Q: Yeah, where did he say, like how many people?
A: Well he was like, three people probably live in one house or four. That's all he really say.
The balance of the statement, which continued for several more pages, included: (1) further details about discussions concerning potential burglary targets; (2) an explicit agreement to divide the illicit proceeds equally among all four participants; (3) and a final confirmation by defendant that he did not have a license to carry or possess the handgun found in the car.
At the end of the State's case, defense counsel announced to the court that he intended to call as a defense witness co-defendant Carlos Marquinez, who was, at the time, incarcerated in Hudson County on unrelated charges.
The trial judge denied defense counsel's application for a short adjournment to have Marquinez transported from Hudson County to Somerset County. The following colloquy captures the essence of what led to the court's decision.
THE COURT: All right. And I understand that at my [initiative] both of you [referring to the prosecutor and defense counsel] were in . . . [my] chambers. I rang and asked Criminal Case to confirm whether or not Mr. Marquinez was here, whether he had been transported on Monday [October 18, 2004]. He had not been. He is not here today, [October 21, 2004] and they were able to determine that he is in the Hudson County Jail.
It's also my understanding that they advised defense counsel that it was his responsibility to ensure that Mr. Marquinez would be here for the trial, as if he were any other witness, whether he is in jail, whether he was outside. Is that correct?
DEFENSE COUNSEL: Oh, that is absolutely correct, your Honor. But like I said, but in complying I can only get what I can get from people that run the Hudson County Jail. They won't release him to me.
THE COURT: All right.
DEFENSE COUNSEL: And I don't mean that to be sarcastic.
THE COURT: There was an additional element. They had advised Criminal Case Management that it was up to the defense counsel to pay for the transmittal of an inmate from the Hudson County Jail to here, meaning Somerset County.
DEFENSE COUNSEL: And that may very well be true. It probably is true, but they didn't tell me.
THE COURT: Fine. So we know that he is not here. There are several reasons why he is not here. The State is ready to rest. I understand that defense is going to rest as well. Is that correct? Absent Mr. Marquinez's being here, Mr. Garcia is not going to testify. He has already told us that.
DEFENSE COUNSEL: Yes, your Honor. Absent Mr. Marquinez, the defense will rest.
Against these facts, defendant now appeals raising the following arguments.
POINT I THE TRIAL JUDGE ERRED IN FAILING TO POSTPONE THE TRIAL UNTIL THE ONLY DEFENSE WITNESS COULD BE PRODUCED FROM THE HUDSON COUNTY JAIL.
POINT II THE DEFENDANT'S SENTENCE IS EXCESSIVE.
We reject these arguments and affirm. It is well-settled that a defendant in a criminal trial has a right "to have a reasonable period of time to effect service of process and obtain compliance therewith," State v. Bellamy, 329 N.J. Super. 371, 378 (App. Div. 2000) (citing State v. Rodriguez, 254 N.J. Super. 339, 345 (App. Div. 1992)). Thus, when balancing a short delay in the completion of the trial against a defendant's legitimate ability to present a viable defense, "the integrity of the criminal process must prevail over the administrative disruption." Id. at 378.
There is nothing in the record before us, however, that reveals how calling co-defendant Marquinez would be a part of defendant's viable defense strategy. Throughout his efforts to secure his presence, defense counsel never gave the trial court a proffer of the substance and relevance of the testimony he expected to solicit from Marquinez. Indeed, according to defendant's statement to the police, Marquinez conceived the burglary scheme, and thereafter specifically recruited defendant because he was the only one in the group who had a gun. Finally, we take special note that by the time this case came to trial, Marquinez had pleaded guilty to conspiracy to commit armed burglary and attempt to commit armed burglary, and had agreed, as part of his plea agreement, to testify as a witness for the State against defendant. Presumably, if his testimony as a defense witness deviated in any material way from the factual basis he gave in support of his guilty plea, the State would have reasonable grounds to either vitiate Marquinez's plea agreement, or consider charging him with perjury. Under these circumstances, we cannot conclude that the trial judge abused his discretion in denying defense counsel's application.
We also reject defendant's challenge to his sentence. The court's statement of reasons in support of the sentence imposed is well supported by the record, State v. Roth, 95 N.J. 334, 365 (1984), and does not run afoul of the constitutional concerns expressed in State v. Natale, 184 N.J. 458 (2005).