On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-05-1938-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Holston, Jr.
Defendant, Jose Ormeno, appeals the Law Division's August 11, 2004 judgment of conviction for second-degree conspiracy to commit robbery and fourth-degree unlawful possession of an imitation firearm. We affirm the conviction but remand for re-sentencing.
Defendant was charged on May 27, 2003 under Essex County Indictment No. 03-05-1938-I in count one with second-degree conspiracy to commit armed robbery, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; in count two with first-degree armed robbery, contrary to N.J.S.A. 2C:15-1 and in count three with fourth-degree possession of an imitation firearm, contrary to N.J.S.A. 2C:39-4(e).
Defendant was tried before a jury from February 4, 2004 to February 13, 2004. The jury found defendant guilty of counts one and three but not guilty of count two. On August 11, 2004, the court sentenced defendant as a persistent offender under N.J.S.A. 2C:44-3(a) and imposed an extended seventeen-year term of imprisonment with an 85% parole disqualifier in accordance with N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA), on count one and a concurrent term of imprisonment of one year on count three.
At about 8:00 a.m. on March 9, 2003, Newark police officer Luis Orsorio was on routine patrol in a marked vehicle in the vicinity of Mount Prospect and Delavan Streets. He observed two men running toward him, one of whom he recognized as co-defendant Rafael "Flocko" Fuentes, having grown up with him in Puerto Rico.
Two Hispanic men were in pursuit. They approached Orsorio's patrol car. One of the men identified himself as Darwin Polango and reported that he and his companion had just been robbed by the two men they were chasing. Polango, who was excited, perspiring and speaking rapidly, told Orsorio that one of the two robbers, later identified as defendant, pulled out a gun, shoved it in his stomach and stated in Spanish: "Give me your money or suffer the consequences." The same man reached into Polango's right rear pocket and took his wallet.
Orsorio notified dispatch of the robbery and provided a brief description of the suspects. Orsorio asked both victims to remain with him. Polango agreed and entered Orsorio's vehicle. The other victim declined and left the scene. While in the patrol car, Polango repeated to Orsorio how the robbery occurred and defendant's role in it.
At slightly after 8:00 a.m., Officers William Johnson and Altamaise Scott, in separate patrol cars, received a radio transmission of the robbery and a description of the suspects. They began searching for them. Johnson observed Fuentes running through the yards in the area of Clifton and Ballentine Streets. Johnson pursued Fuentes for about ten yards before apprehending and arresting him.
About ten minutes later, Scott, who had exited his vehicle, searched the backyards of various homes in the area with other officers. He observed defendant in a fetal position hiding under a bush in the rear fenced-in yard of one of the homes between a bush and the house. When Scott lifted defendant up, he observed what appeared to be a semi-automatic handgun embedded in the snow. After the officer picked it up, he realized it was a toy gun.
Officer Orsorio, who was at the scene of defendant's arrest, recognized defendant as one of the two men he observed running past his patrol car twenty minutes earlier.
Detective Anthony Iamello gave defendant Miranda*fn1 warnings at police headquarters, where he was brought after his arrest. Defendant signed a waiver of rights form at 11:20 a.m., which was witnessed by Detective Dominick D'Andrea. Defendant, thereafter, gave a typed, three page sworn statement, which he signed after reading it. The statement was acknowledged by Sergeant Martin.
In his statement, defendant stated he was driving to Parker Street to buy bread and eggs when he saw Fuentes, who motioned him over. Fuentes told him he was "dope sick," and the defendant replied he was "sick," as well. Indicating he only had three dollars, Fuentes asked defendant if he wanted "half a bag of dope." Defendant agreed, so defendant drove Fuentes to an area a short distance away where Fuentes entered a residence before returning with a bag, giving half of its contents to defendant.
After each of them consumed the drugs, Fuentes said, "Let's rob someone. . . . Let's get a wetback." Fuentes explained to defendant that they would simply "walk up to them and take their money." Defendant asked Fuentes what they would use to effectuate the robbery. They then stopped at a supermarket where Fuentes bought a plastic gun for $1.99. They drove about two blocks before seeing "two wetbacks." They both exited the car. Fuentes gave the toy gun to defendant and told him to point the gun at them while he got their money. Fuentes took one of the "guys" wallets before they both walked away. They saw a police car so they ran. Defendant did not know how much money was taken from the victim or what happened to the wallet.
Defendant testified at trial. Defendant disavowed his statement, claiming that he was not asked to give a statement and the only document he signed was a "report with my information." He claimed he did not tell the police that he wanted to rob a "wetback" or that he purchased a toy gun to use in the robbery. On the contrary, he told the police that there was no robbery. He admitted that on the morning of March 9, 2003, he gave Fuentes, who was "dope sick," a ride and the two shared a ten-dollar "bag of dope." He contended he was still high when the officer asked him about the alleged robbery. Defendant stated he and Fuentes pooled their money to buy the drugs because he had only $8.00 in his possession and Fuentes had $3.00.
Defendant denied ever using the word "wetback" in his statement. He was aware a "wetback" was someone who came from South America, because he was from Peru. If someone used that term to him, he would have been insulted. He denied ever seeing the waiver of rights form and the initials that existed on the form were not his handwriting. The signature, which appeared at the end, was not his signature.
Defendant testified that while they were driving, Fuentes recognized someone on the street and asked defendant to pull over. Fuentes called to "two guys walking[;] he approached them and started talking to them." Defendant waited in the car and could not hear their conversation, because he was three or four cars away. Three or four minutes later, defendant got out of the car, because Fuentes was "getting like excited, like an argument," and he wanted to see what the argument was about. He told Fuentes: "Let's take a walk so he would cool down."
Although defendant claimed he left the area with Fuentes to avoid an argument, they did not return to the car. Defendant's explanation was that he did not want any damage done to the car. Instead, they started walking down the street. Defendant looked back and saw the two men following them. He told Fuentes to walk faster and they passed a police officer coming in the opposite direction from which they were walking.
Defendant did not stop and ask the police officer for help, because he had an open warrant for his arrest for possession of narcotics, and he did not want to be arrested. Instead, he walked faster, "almost like kind of running but not running." He saw an open gate and walked into a rear yard where he hid under a bush. He identified the toy gun found at the time of his arrest but claimed it was not under him. It was lying under "the next bush" and was never in his possession.
Based on these divergent facts, the jury found defendant guilty of conspiracy to commit robbery and guilty of possession of an imitation firearm but not guilty of robbery.
Defendant presents the following arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED BY THE PROSECUTOR, WHICH INFERENTIALLY INFORMED THE JURY THE DEFENDANT HAD BEEN ...