On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-12-1109-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Stern, Collester and C.L. Miniman.
Tried to a jury, defendant Jessica Landrio was convicted of first-degree robbery, kidnapping, carjacking, theft of movable property valued at $1,000 or less, and acquitted of conspiracy. Following merger, she was sentenced to an aggregate term of fifteen years with eighty-five percent to be served before parole eligibility under the No Early Release Act (NERA). She makes the following arguments on appeal:
POINT I - THE TRIAL COURT ABUSED ITS DISCRETION AND MISAPPLIED THE "OPENING THE DOOR DOCTRINE" BY ADMITTING THE SHOTGUN (S-2) INTO EVIDENCE AND BY PERMITTING JOHN KELDER TO TESTIFY THAT THE DEFENDANT WANTED TO DESTROY THE SHOTGUN.
POINT II - THE TRIAL COURT'S JURY INSTRUCTIONS WERE INADEQUATE AND INCOMPLETE AND CONSTITUTES PLAIN ERROR. (Not Raised Below.)
A. BY FAILING TO INCORPORATE THE FACTS OF THE CASE INTO ITS ACCOMPLICE LIABILITY CHARGE, THE TRIAL COURT COMMITTED PLAIN ERROR BECAUSE IT IMPROPERLY LINKED THE CRIMINAL CULPABILITY OF THE DEFENDANT WITH THE CRIMINAL CULPABILITY OF HER CO-DEFENDANTS. (Not Raised Below.)
B. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO PROVIDE ADEQUATE GUIDANCE TO THE JURY ON HOW TO ASSESS THE CREDIBILITY OF CO-DEFENDANT KELDER IN LIGHT OF THE FACT THAT HE WAS TESTIFYING FOR THE STATE PURSUANT TO A FAVORABLE PLEA AGREEMENT. (Not Raised Below.)
C. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO PROPERLY INSTRUCT THE JURY ON OTHER CRIMES EVIDENCE. (Not Raised Below.)
POINT III - THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT THE DEFENDANT'S PRIOR CONVICTION WAS ADMISSIBLE TO IMPEACH CREDIBILITY.
POINT IV - THE AGGREGATE 15 YEAR BASE CUSTODIAL SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.
In the summer of 2003, John Competiello, a self-employed automobile mechanic in his late forties, lived alone in an apartment on the second floor of a house in Clifton. Living across the street was the mother of co-defendant John Kelder and her boyfriend, Alan Darvus, with whom Competiello was quite friendly although he did not get along with her son John Kelder.
Around May 2003, defendant Jessica Landrio was living in Pennsylvania with her husband and son when she reunited with her ex-husband, co-defendant Kelder. In June she moved to Clifton with Kelder. Soon after she arrived she met Competiello at a barbeque given by Darvus and Kelder's mother. She told Competiello she worked as a stripper at various clubs and private parties. Later, Landrio rented and moved into her own apartment in Clifton, but the check for the security deposit and first month's rent could not clear because her husband withdrew the money from their joint account. Landrio told Competiello that the real estate agent threatened to call the police if she did not make good on the check, and he loaned her the money. Landrio promised Competiello that she would repay the loan at $100 a month, but no payment was ever made.
At the end of July 2003, co-defendant Michael Grimaldi was discharged from the Army and asked Landrio whether he could stay at her apartment for a few days. Since Grimaldi was the father of Landrio's daughter, she agreed. At about 7:30 p.m. on August 5, 2003, Landrio, Grimaldi and Kelder hatched a scheme to rob Competiello. Landrio testified at her trial that Kelder and Grimaldi pressured her into calling Competiello and telling him that she would stop by later that evening to discuss the money she still owed him. She said Competiello was enthusiastic about seeing her and told her to come alone. Kelder then told Landrio that Competiello had a large amount of cash in his apartment, and it was decided that he and Grimaldi would rob Competiello with Landrio's help. Landrio claimed Kelder told her the money was "mafia money, so Competiello would never report the theft to the police." Landrio testified she did not want to go through with the plan, but did so because Kelder "guilt tripped" her by bringing up the fact that she aborted his baby.
Testifying for the State pursuant to a plea bargain, Kelder's version of the events of the early evening were different. He said that during the phone conversation, Competiello told Landrio that his uncle died and left him $300,000 which he had in cash at the house. Kelder said that after the phone call, Landrio suggested that they commit the robbery.
It was decided that Landrio would go to Competiello's apartment pretending that she was there to repay him the $3,000 she owed, and once she was inside, Grimaldi would knock on the door and pretend to inquire about a motorcycle for sale. When Competiello would say he knew nothing about a motorcycle, Grimaldi would ask to use Competiello's phone to call the number on the advertisement. Once inside, he would hold Competiello at gunpoint, and Kelder would enter the apartment to search for the money. All three agreed that they would wear rubber gloves when they were inside Competiello's apartment so as to not leave fingerprints. They then drove in Landrio's car to Competiello's address, stopping along the way at a convenience store to buy latex gloves.
Competiello testified that at about 8:15 Landrio rang his doorbell and came up to his second floor apartment. He said that after a few minutes, the doorbell rang. Competiello went downstairs and spoke with Grimaldi, whom he had never met. Proceeding with the cover story, Grimaldi inquired about a motorcycle for sale. Thinking that Grimaldi had the wrong address, Competiello agreed to allow Grimaldi to use his telephone. While Grimaldi pretended to use the kitchen telephone, Landrio excused herself so she could step outside to smoke a cigarette. Moments later she reentered with Kelder. Grimaldi then placed a gun at the back of Competiello's head and directed him to sit on the sofa. Competiello then saw that all three were wearing clear rubber ...