April 4, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAMON ALMONTE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-05-0843.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2008
Before Judges Graves, Sabatino and Alvarez.
In this direct criminal appeal, defendant Ramon Almonte alleges several errors in the 2006 trial that resulted in his conviction of conspiracy to commit murder and of two related weapons offenses. Defendant also appeals his sentence. We affirm defendant's convictions but remand for resentencing, in light of the State's concession that the weapons offenses should have merged for sentencing purposes.
This matter arises out of a fatal confrontation between two rival factions of young men on the evening of August 24, 2003 in West New York. According to the State's proofs, defendant, along with seven other members of a street gang known as "Los Trinitarios," participated that night in an attack upon members of another contingent known as the "60th Street" gang. The State contended that the attack of August 24, 2003 was conducted in retaliation for the stabbing of Luis Carlos Arias, a member of Los Trinitarios, four months earlier on April 16, 2003, by members of the 60th Street faction. The August 2003 altercation occurred hours after the Dominican Day parade in West New York. The aggressors in the attack wielded knives and screwdrivers. During the course of the attack, one of the 60th Street gang members, Garmair Brown, was stabbed to death, and two of Brown's colleagues, Christopher Navarro and Brian Powell, were stabbed and injured.
Defendant's alleged role in the August 24 altercation began earlier that day when he was present with members of Los Trinitarios while the evening attack was planned. Consistent with that plan, defendant that evening got into a white 1993 Honda Civic with a leader of Los Trinitarios from Brooklyn, Pedro Quezada. Quezada brought with him a long screwdriver. Defendant, meanwhile, got into the Honda with a large piece of plywood. Two other gang members also got into the car.
The white Honda and a red Infiniti, each carrying four occupants, converged at an Exxon gas station at 60th Street around 9:00 p.m. When the eight men arrived, they encountered about fifteen people, including Brown, Navarro and Powell. Two or three of the arrivals got out of the Honda and approached Brown. According to an eyewitness, Jessica Pardo, one of them "pushed" Brown, and, using what appeared to be a knife, stabbed him repeatedly in his lower body. After hearing Brown scream, Powell came to his aid. While he was rendering assistance, Powell was assaulted by another person with a knife, but he was able to deflect the attack. In the course of the ensuing melee, Navarro also was stabbed in the arm.
As police responded to the scene, the participants scattered. An EMS crew attended to Brown, who died of five stab wounds later that evening. Police officers located the red Infiniti, and apprehended three occupants who had been involved in the attack. They recovered from that vehicle a screwdriver wrapped in cloth, as well as finding another screwdriver in a nearby dumpster. Several broken pieces of wood were also found on the south side of 60th Street. Police also subsequently located the white Honda, and found a knife in the trunk.
Defendant was not immediately apprehended. A few months after the attack, in January 2004, police interviewed a witness, Alex Mendoza. Mendoza told the police that defendant had been with the group at the parade on August 24, 2003. Defendant was subsequently arrested. After being given Miranda*fn1 warnings, he admitted that he had been at the parade, and that he had thereafter gone to the gas station in the Honda with the others because they were looking for the men who had previously stabbed Arias. Defendant further admitted that he formerly had been a member of Los Trinitarios. He identified Quezada as the "head" of the Brooklyn members of the group, and that Quezada had given an "order" for the men to go to the 60th Street location. Defendant contended that he went along with the group because he was drunk at the time, and was afraid of Quezada.
Defendant denied to the police that he had attacked anyone himself, although he admitted that he had gotten into the car with a plywood board or "stick" that could be used as a weapon. He maintained that when he arrived at the fight scene, he was so intoxicated that he fell down, and someone took the board away from him. Defendant also acknowledged that his cohorts stabbed Brown and attacked others at the scene. Following his interview, defendant showed the police the place where Quezada discarded a large screwdriver that he had used in the attack. The next day the police recovered that weapon, which had a blade approximately ten inches long.
Defendant and the seven others*fn2 involved in the August 24, 2003 attack were subsequently indicted in Hudson County and charged with numerous crimes, the most serious of which was conspiracy to commit Brown's murder. Defendant's trial was severed from that of the co-defendants.
At trial, the State presented testimony from several participants or eyewitnesses, including Arias, Powell, Pardo, and an associate of theirs named Anthony Rodriguez. The State also presented testimony from Frank Silverio, an EMS worker who had assisted Navarro after he had been stabbed, and Police Detective Edward Rivera. Rivera, who was the first officer to arrive at the scene of the altercation, was initially approached by Navarro. He thereafter discovered Brown on the ground with stab wounds. The jury also was provided with defendant's taped post-Miranda statement and various physical and documentary exhibits. Additionally, the State presented testimony from several other officers who had been involved in the investigation, a forensic pathologist who had performed Brown's autopsy, and numerous other lay witnesses.
Over defendant's objection, the State also provided expert testimony concerning Latino gang organizations, including Los Trinitarios, from Police Detective David Valdivia. Among other things, Detective Valdivia explained to the jury the structure of the Los Trinitarios organization, its rules and practices, and its relationship to other gangs. He also explained the gang context of the stabbing of Arias in April 2003 and the retaliation by the rival gang that occurred on August 24 following the parade.
Defendant did not put on any trial witnesses, and elected not to testify in his own defense. Several of the counts against him were dismissed by the court before the jury was charged, leaving four counts for the jurors' consideration.
On the second day of their deliberations, the jurors found defendant guilty of first-degree conspiracy to murder Brown (Count I), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a(1) or (2); fourth-degree unlawful possession of a weapon, specifically a stick (Count XIV), N.J.S.A. 2C:39-5d; and fourth-degree possession of a weapon, specifically a stick, for an unlawful purpose (Count XV), N.J.S.A. 2C:39-4d. The jury acquitted defendant of the sole remaining count, Count IV, which, in contrast to the conspiracy offense in Count I, had charged him substantively with the murder of Brown.
The trial judge sentenced defendant to a twenty-year term on Count I, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2(a). The judge also imposed concurrent eighteen-month terms for the weapons offenses in Counts XIV and XV.
Defendant raises the following points on appeal:
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT EXPERT GANG TESTIMONY THROUGH DETECTIVE DAVID VALDIVIA RELATING TO LOS TRINITARIOS SINCE THE OFFICER WAS NOT SUFFICIENTLY QUALIFIED TO RENDER SUCH EXPERT TESTIMONY.
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW)*fn3
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT XIV[,] CHARGING POSSESSION OF A WEAPON UNDER CIRCUMSTANCES NOT MANIFESTLY APPROPRIATE FOR SUCH LAWFUL USES[,] AS IT MIGHT HAVE INTO COUNT XV CHARGING POSSESSION OF THE SAME WEAPON FOR AN UNLAWFUL PURPOSE. (NOT RAISED BELOW)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Upon carefully considering these points, the record as a whole, and the applicable law, we sustain defendant's convictions but remand the matter, with the prosecutor's consent, for resentencing to accommodate the merger of the two weapon counts.
Defendant's first point on appeal challenges the trial judge's admission of the expert testimony elicited from Detective Valdivia concerning gang organizational characteristics and, specifically, Los Trinitarios. Defendant argues that Valdivia was not sufficiently qualified to render such expert testimony. We disagree.
The record establishes that the trial judge conducted a preliminary hearing,*fn4 pursuant to N.J.R.E. 104, before admitting Detective Valdivia's expert testimony. During the Rule 104 hearing, it was established that Valdivia was a ten-year veteran of the Union City Police Department. Valdivia received over twenty hours of formal classroom training on gangs by the State Police, as well as an advanced week-long program at Monmouth University.
Valdivia testified that he had been concentrating on gang issues for the preceding three years. Through his police work, he had dealt personally with approximately fifty gang members after their arrests or in interviewing them as potential witnesses. The record further reflects that Valdivia was familiar with Latino gangs in the Hudson County area, including Los Trinitarios. The detective noted that the members of Los Trinitarios were mainly Dominican, and that their home base was in Brooklyn, with affiliated operations in Jersey City and Union City.
As a further indication of his gang expertise, Valdivia is the author of a report that he prepared for the State Police in 2003, in which he traced the history of Los Trinitarios, which has its origins in the nineteenth century as a secret society in the Dominican Republic following the overthrow of the Haitian Government. Valdivia's report described the structure of Los Trinitarios, the clothing of its members, a partial list of their membership rules, and a chart of their organization. Valdivia explained that the gang's structure included leaders, enforcers, security officers, organizers, and other members within the hierarchy. Valdivia noted that Los Trinitarios was one of eight or nine gangs active in his municipality. He estimated that, at the time in question, there were approximately one hundred members of Los Trinitarios in Hudson County and about two hundred active members in Brooklyn.
The trial judge overruled defendant's objection to Detective Valdivia's expert testimony. In his oral ruling following the Rule 104 hearing, the judge stated:
I find that the officer has sufficient knowledge, education, experience in training in the area of gangs and more specifically in the area of the Trinitarios as regarding to their rules, hierarchy, structure, and regulations that he can be -- he can testify as an expert in that area because he can give information to the jury that will aid them potentially in their deliberations or investigation of this matter.
Immediately thereafter, the judge issued the usual limiting instruction, cautioning the jurors that they were not bound by Valdivia's opinions, and that they could reject his observations, completely or in part. See Carey v. Lovett, 132 N.J. 44, 65 (1993); see also Model Jury Charge (Criminal), "Expert Testimony" (2003).
N.J.R.E. 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert . . . may testify thereto in the form of an opinion or otherwise." The expert may be so qualified as the result of his or her "knowledge, skill, experience, training or education." Ibid. Such "expert opinion is admissible if the general subject matter at issue, or its specific application, is one with which an average juror might not be sufficiently familiar[.]" State v. Berry, 140 N.J. 280, 292 (1995).
Our Supreme Court previously considered the admissibility in a criminal case of expert testimony concerning gang organizations in State v. Torres, 183 N.J. 554 (2005). A central issue in Torres was whether the defendant, an alleged leader of a Latino street gang, was responsible for the stabbing death of a former leader of the gang who had fallen out of power. Id. at 560-61. Although defendant had not wielded the knife that was used to kill the victim, the State alleged that defendant had issued a "heat-up" order, signaling that any member of the gang could harm the former leader without fearing reprisal. Id. at 561. To support these contentions, the State offered expert testimony from an investigator with the New Jersey Division of Criminal Justice, Timoteo Vazquez, concerning gang activities and practices.
In sustaining the rulings of the trial judge and of this court that Vazquez's expert testimony was admissible under Rule 702, the Supreme Court first held, as a general proposition, that expert opinion concerning street gangs may be helpful to average jurors in understanding the structures and operations of such gangs. Id. at 573. The Court's receptivity to such expert proof was supported by what it described as "the substantial number of judicial decisions permitting expert testimony related to gang activity," id. at 572, as illustrated by numerous state and federal opinions allowing it. Id. at 569-71. The Court observed that "the organization and structure of Latino street gangs, and the [specific gang involved in Torres], are beyond the ken of the average juror." Id. at 573. Consequently, expert testimony "explaining the structure, organization, and procedures of street gangs would be helpful to a jury's understanding of the relevant issues at trial." Ibid. The Court did note, however, that a gang expert's testimony ought to be "restricted to those areas that fall outside the common knowledge of jurors." Ibid.
The Supreme Court specifically concluded in Torres that the expert witness proffered by the State in that case, Vazquez, possessed sufficient qualifications to testify in that capacity. In that regard, the Court took note of Vazquez's classroom training, lecture presentations, and years of field experience in tracking gang activity and in investigating crimes associated with such gangs. Through those experiences, Vasquez "learned of gang protocols and modes of operation, the number of [their] members, the person or persons in charge, where they operated, various crimes [they] committed, and the initiation practices and behavioral codes within the organization." Id. at 575.
In the present case, defendant principally argues that the trial court erred in admitting testimony from the State's gang expert, Detective Valdivia, because his experience with gangs was less extensive that that of Investigator Vasquez in the Torres case. Defendant points out that, unlike Vasquez, Valdivia's focus upon street gangs was only a part-time responsibility, and that he had never lectured to any law enforcement groups about gang issues. Defendant also minimized the significance of Valdivia's report about Los Trinitarios that he had prepared for the State Police, because much of the information in that report was derived from secondary sources.
In assessing defendant's claim of reversible error, we are reminded that our task as a reviewing court as to such evidentiary rulings is a limited one. As the Supreme Court recently reiterated in Hisenaj v. Kuehner, ____ N.J. ____ (2008) (slip op. at 5), appellate review of the admission of expert testimony is guided by whether the trial court abused its discretion in admitting the testimony. See also Carey, supra, 132 N.J. at 64. In making such assessments, we simply determine whether the trial court's decision to admit the expert's testimony was "not so 'wide of the mark' as to constitute a 'manifest denial of justice' and an abuse of discretion." Hisenaj, supra, slip op. at 25 (quoting State v. Wakefield, 190 N.J. 397, 435 (2007), cert. denied, ____ U.S. ____, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008); and Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)).
Bearing these principles in mind, we discern no misapplication of discretion or reversible error here by the trial judge in admitting Valdivia's expert testimony. Like Investigator Vasquez in Torres, Detective Valdivia is a veteran law enforcement official, with over ten years of experience. He likewise has attended hours of specialized training on gang issues. Of equal importance, Valdivia has participated in over fifty gang-related investigations, personally interviewing numerous former and current gang members, including members of Los Trinitarios.
We do not believe that Valdivia's substantial knowledge of gangs is vitiated by the fact that his work assignments on such gang matters happen to be a part-time responsibility rather than a full-time one, or that he has not formally lectured on the topic. His detailed testimony, including his recitation of seventeen of the twenty-one organizational rules of Los Trinitarios and his rich description of the gang's hierarchy and procedures, bespeaks considerable specialized knowledge of such gangs, and matters beyond the knowledge of the average juror. The fact that Valdivia's resume is not identical to that of Vasquez, and that his experience is not quite as extensive, does not disqualify him from lending his substantial expertise in a criminal trial. That is particularly salient in this case, one in which gang protocols and gang reprisal were central to the chronology of events leading up to the fatal gang-on-gang confrontation on 60th Street.
The admission of the State's gang expert's testimony is therefore affirmed in all respects.
Defendant next argues that the trial judge committed plain error in allowing the prosecutor's summation to "exceed the bounds of propriety." Because the alleged misconduct was not the subject of any objection by defendant's trial counsel, we evaluate this claim by the "plain error" standard of review. See R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971).
To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993). Indeed, the Supreme Court has recognized that criminal trials often create a "'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958)).
We have duly considered all of the prosecutor's comments in summation that defendant has characterized as improper. Having done so, we are satisfied that none of the cited remarks were "so egregious" as to "deprive the defendant of a fair trial." Frost, supra, 158 N.J. at 83.
Defendant mainly criticizes the prosecutor for posing rhetorical questions to the jurors about the significance of the evidence. We perceive nothing wrong in that stylistic form of oratory. The prosecutor suggested his own answers to each of the questions that he posed, based upon the State's view of the evidence. That colloquy did not impugn defendant's constitutional right to elect not to testify in his own defense. Nor did it appeal unfairly to the emotions of the jurors.
As to one of the cited remarks, we do note that it would have been preferable if the prosecutor had not stated to the jury that it was not "fair" to the victim's parents that the events of August 24, 2003 had transpired in the manner in which they had. We do not, however, regard that stray reference as a sufficient basis to conclude that the jury's verdict represented a miscarriage of justice. Indeed, the State's proofs against defendant, including his own inculpatory statements to the police after receiving Miranda warnings, were very substantial.
We find no plain error resulting from the prosecutor's summation and therefore affirm the judgment of conviction.
Lastly, we briefly address defendant's sentence. The State concedes that defendant's conviction for the unlawful possession of a weapon in Count XIV should have been merged with his conviction in Count XV for the possession of a weapon for an unlawful purpose, because the elements of the latter crime are all subsumed within the former. See State v. Jones, 213 N.J. Super. 562, 568 (App. Div. 1986), certif. denied, 107 N.J. 90 (1987). Consequently, the conviction in Count XIV should have merged at sentencing into Count XV. Because this was not done at the initial sentencing, the matter must be remanded, and the State has acknowledged the need for such a remand.
Although it is not necessary for us to do so, we further note that we perceive no merit in defendant's separate contention that his twenty-year sentence on the murder conspiracy in Count I is excessive. Although we are mindful, as was the trial judge, that defendant's prior criminal record was not extensive, consisting of one adult indictable offense and a disorderly persons offense, the aggravating factors otherwise present here are substantial. These factors particularly include the need to deter violent gang-related activities. N.J.S.A. 2C:44-1a(9) (aggravating factor 9). We also are satisfied that the sentencing judge did not overlook any pertinent mitigating factors. On the whole, the record amply shows that the twenty-year sentence meted to defendant on Count I for the conspiracy-to-murder was not manifestly excessive. State v. Roth, 95 N.J. 334, 363-64 (1984).
The judgment of conviction is affirmed. The matter is remanded for resentencing, to permit the merger of the two weapons counts and the imposition of a new corresponding sentence.