March 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JULIO FLORES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-03-0778.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2008
Before Judges Parker and Lyons.
Tried to a jury, defendant Julio Flores was convicted of robbery, burglary, unlawful possession of a weapon, and possession of a weapon for unlawful purpose. After reviewing the record in light of the contentions advanced on appeal, we have concluded that the trial court did not commit reversible error at trial or during sentencing and, therefore, we affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On November 11, 2005, the victim of the robbery, a widow, was preparing to leave her apartment to go to work at one of her two jobs. As she opened the door to leave for work, a man pushed her back into the apartment and demanded everything that she had of value. As she began to scream, the assailant placed a knife to the victim and told her not to scream. Although the man wore a hood, the victim immediately recognized his voice.
The victim begged him not to do anything to her because of her grandchildren, but to take whatever he wanted. He held a knife to the victim's back and had his arm around her throat as they walked into the bedroom. The man took $1000 in cash from the bureau top and the victim's deceased husband's rings and her necklaces from a wooden jewelry box. The assailant led the victim back into the living room, opened and closed the apartment door to make sure that nobody was there, opened the door again, and ran from the apartment. Before he ran, he pushed the victim back and told her not to report the crime.
While the robbery was in progress, the victim's neighbor heard a commotion and argument coming from the victim's apartment. He became concerned and knocked on the her door, asking, "what's happening? Is everything all right?" When nobody answered, he went back into his apartment and left his door cracked open. The neighbor then saw somebody, whose face was covered by a "hoodie," open the victim's door and run past his door. Subsequently, the neighbor returned to the victim's apartment, where he found the victim crying. He then asked someone to call the police. When the police arrived, the victim went to the police station where she gave a statement. The victim knew defendant as "Tony," recognized him by his voice, and identified him by his photo. On November 21, 2005, defendant was arrested and charged.
On March 14, 2006, defendant was indicted on: first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count two); fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count three); and third-degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4(d) (count four).
At trial, the victim testified that she never saw her assailant's face, but that she immediately recognized his voice.
She testified that she had known defendant for four years, saw him daily, and conversed with him on a regular basis. In court, the victim again identified defendant as the man she knew as Tony. She testified that he slept in the stairwell of her apartment complex. In addition, he would ask the victim for the key to the bathroom downstairs and for food, which she would give him.
On September 20, 2006, the jury found defendant guilty on all counts. On December 1, 2006, defendant was sentenced. The trial court, pursuant to N.J.S.A. 2C:44-1, found aggravating factors (1), (2), (3), (6), and (9), and no mitigating factors. It sentenced defendant to fifteen years on the robbery count, with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In addition, defendant was sentenced to seven years on the burglary count to run concurrent to the robbery sentence, also subject to NERA, and nine months on the unlawful-possession-of-a-weapon count to also run concurrent to the robbery sentence. The possession-of-weapon-for-an-unlawful-purpose count was merged with the robbery count. The court also imposed appropriate fines and penalties.
On February 7, 2007, defendant filed a notice of appeal. Defendant raises the following issues on appeal:
DEFENDANT'S CONVICTIONS MUST BE REVERSED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
EVIDENCE THAT DEFENDANT WAS IMPOVERISHED AND HOMELESS AT THE TIME OF THE OFFENSE WAS SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL. (Not raised below).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
Defendant's arguments are discussed seriatim. First, defendant argues that the jury verdict was against the weight of the evidence. Defendant argues that the State failed to prove defendant guilty beyond a reasonable doubt of the crimes for which he was convicted. Most significantly, defendant argues that the State's entire case was based upon the testimony of the witness who identified defendant only by his voice.
The testimony of one witness, if found by the jury to be credible, is enough to convict a defendant. State v. Rountree, 106 N.J. Super. 135 (Law Div. 1969) (finding that "jurors are permitted to find facts based upon the testimony of a single witness whom they find to be worthy of belief"), aff'd, State v. Roundtree, 118 N.J. Super. 22 (App. Div. 1971); accord Becker v. State, 585 N.E.2d 279 (Ind. Ct. App. 1992) ("a defendant may be convicted on the uncorroborated testimony of the victim").
The victim testified in detail about her familiarity with defendant, the opportunity that the victim had to hear her assailant, and the certainty of the identification. Voice identification may be admissible if its reliability outweighs any suggestiveness involved in the identification procedure. State v. Clausell, 121 N.J. 298, 328 (1990). "Reliability depends on such factors as the witness's opportunity to hear the accused and the consistency with prior voice identifications." Ibid. Given the victim's extensive testimony concerning her familiarity with defendant and the absence of any proofs that there was any suggestiveness in the procedure used to have the victim identify defendant, we conclude that the voice identification was reliable.
Having concluded that the victim's testimony was sufficient, the evidence presented by the State, viewed in the light most favorable to the State, satisfied every element of the robbery, burglary, and weapons counts. See State v. Spivey, 179 N.J. 229, 236 (2004). Accordingly, we find that the verdict was sufficiently supported by the evidence.
Second, defendant argues that evidence that "defendant was impoverished and homeless at the time of the offense was so prejudicial as to deny defendant a fair trial." As this argument is first advanced on appeal, it is subject to the plain error standard. R. 2:10-2. Defendant claims that the victim's testimony that she knew defendant because she "would give him food," "he slept in the stairwell," and defendant would ask the victim for the key to the bathroom "unequivocally demonstrated that defendant was financially destitute and homeless." In turn, defendant argues, this impermissibly proved motive to commit the crimes.
Of course, all evidence must comport with fundamental rules of evidence to be admissible. First, the evidence must "hav[e] a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. If relevant, the evidence is then admissible "[e]xcept as otherwise provided in these rules or by law . . . ." N.J.R.E. 402. Even relevant evidence, however, "may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. In weighing the probative value and risk of undue prejudice, the "trial court is afforded considerable latitude regarding the admission of evidence, and is to be reversed only if the court abused its discretion."
State v. Nelson, 173 N.J. 417, 470 (2002) (internal quotation omitted); State v. Morton, 155 N.J. 383, 453 (1998).
Within the evidentiary framework set forth above, the testimony is clearly relevant and probative as to how the victim knew defendant. With regard to balancing of probative value with undue prejudice, the interaction between the victim and defendant was essential to the identification, not some corollary issue or a forbidden theme. See State v. Mathis, 47 N.J. 455, 472 (1966); State v. Terrell, 359 N.J. Super. 241, 247 (App. Div.), certif. denied, 177 N.J. 577 (2003). After a review of the State's opening and closing statements, we find that the testimony elicited by the State was not advanced to suggest motive to the jury, but rather it was highly probative to the victim's identification of defendant.
Moreover, it is difficult to find that the prejudicial effect outweighed the probative value of the testimony under these circumstances. The State touched upon defendant's homeless status to illustrate how the victim was familiar with defendant. Defense counsel, however, during cross-examination of the victim, directly highlighted and emphasized defendant's homeless status in eliciting testimony that there were many other homeless people in the area who had the opportunity to commit the crimes, and suggesting that such a person may have been the person who committed the crime. Defendant's further development of the victim's testimony, and later use during closing statements, diminishes any argument that this testimony was unduly prejudicial so as to warrant reversal under the plain error standard. Because we find that the trial court did not abuse its discretion in admitting this evidence to support victim's identification of defendant, however, we need not resolve this issue.
Third, defendant argues that his sentence was "manifestly excessive and unduly punitive and that appellate modification is warranted." Our Supreme Court has outlined the respective roles of the trial court and the appellate division with regard to criminal sentences. According to the Court, "a trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989); see also State v. Kruse, 105 N.J. 354, 359-60 (1987); State v. Roth, 95 N.J. 334, 359-60 (1984). In contrast, an appellate court, does not sit to substitute its judgment for that of the trial court. An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. [O'Donnell, supra, 117 N.J. at 215.]
"Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience." Id. at 215-16. Given a careful balancing of mitigating and aggravating factors by the trial court, we should not substitute our judgment for that of the trial court. Id. at 220.
Applying these standards to the instant matter, it follows that the trial court did not impose an excessive sentence upon defendant. The trial court found that the nature of the crime "represents a more serious form of first degree than . . . the standard first degree robbery" because of the effect on the victim and the inviolate nature of the home. In addition, the trial court had before it defendant's twelve prior arrests and prior indictable offense and cited defendant's prior criminal record. Accordingly, it found aggravating factors (1), (2), (3), (6), and (9) and no mitigating factors. N.J.S.A. 2C:44-1. In light of the pre-sentence report, defendant's prior criminal record, and the nature of the crimes committed, the sentence of fifteen years does not shock the judicial conscience. O'Donnell, supra, 117 N.J. at 215.
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