On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-04-0468.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Lyons and Waugh.
Defendant Julio Mulero appeals his conviction on two counts of first-degree armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (counts one and two); two counts of criminal restraint by involuntary servitude, N.J.S.A. 2C:13-2(b) and N.J.S.A. 2C:2-6 (counts three and four); one count of theft, N.J.S.A. 2C:20-3(a) and N.J.S.A. 2C:2-6 (count five); one count of aggravated assault, N.J.S.A. 2C:12-1(b)(4) and N.J.S.A. 2C:2-6 (count six); one count of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:2-6 (count seven); and one count of unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:2-6 (count eight), as well as his aggregate sentence of thirty-nine years of incarceration, as to thirty-four of which he is subject to a period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
At oral argument, the State conceded that the two convictions for criminal restraint by involuntary servitude should merge into the two armed robbery convictions. Consequently, Mulero's argument that the trial court should have granted his motion for acquittal on those charges is moot. We affirm the remaining convictions. Although we conclude that the sentence imposed on Mulero was not excessive in itself, we remand to the trial court for a hearing, pursuant to State v. Roach, 146 N.J. 208, 231-234, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996), to determine whether the disparity between Mulero's sentence and that of his co-defendant is justifiable.
The following facts were adduced at trial. On July 30, 2003, two men robbed the beauty salon located at 147 Valley Road in Clifton. Mulero and co-defendant Eric Garcia were arrested and charged with the robbery and related offenses. Garcia pled guilty, but did not testify at trial. Ninetta Corradino, the owner of the salon, and David Royce, a customer, were both present during the robbery and both testified for the State at Mulero's trial.
Corradino testified that she opened her shop that morning at 8:20 a.m. David Royce was her first customer. At the conclusion of the haircut, as Royce was paying Corradino, a man, subsequently identified as Mulero, walked in and sat in one of the salon chairs. Corradino had a brief conversation with Mulero in Spanish, during which he requested a haircut. Corradino and Royce were in the process of explaining to Mulero that he would need an appointment when another man, subsequently identified as Garcia, came and "stayed by the door."
Garcia spoke to Mulero in Spanish. According to Corradino, Mulero stood up, lifted his shirt, and brandished a gun. Royce, however, testified that it was Garcia who was in possession of the gun, having "pulled it out of his pants." While Corradino described the gun as "[b]lack with silver," Royce described the gun as "chrome."
Corradino and Royce were instructed to "[g]et up and go in the back." Corradino testified that Mulero, while holding the gun in his right hand, pointed the gun at her head and then at Royce. Both Corradino and Royce complied and went into the back room. Royce testified that, while being ushered into the back room, someone removed his wallet from his left rear pocket. Corradino did not witness that event.
When in the back room, Mulero ordered Corradino and Royce onto the floor and tied them to a chair with shoelaces. According to Royce, Garcia was also in the back room at that time. After they were secured to the chair, Mulero turned off the lights, left the room, and locked the door.
Corradino and Royce waited approximately five minutes and then Corradino untied herself with her teeth. She released Royce with a pair of scissors. They went into the front of the salon and found it empty. Corradino noticed that her wallet and car keys were missing. Royce dialed 9-1-1 to summon the police.
On July 31, 2003, Corradino and Royce identified Garcia in a photo array that did not include Mulero. They were unable to agree on the identity of the second suspect. Garcia was arrested shortly thereafter. On August 1, 2003, there was a second photo array, which included a picture of Mulero. Corradino and Royce then identified Mulero as the second participant in the robbery.
Following his arrest, Mulero waived his Miranda*fn1 rights and gave a statement to the police, admitting his participation in the robbery. Mulero also admitted to using a toy gun. According to Mulero, he entered the salon first, followed by Garcia. He took the toy gun out of his pocket, but claimed that he only pointed it at the ground and then returned it to his pocket. He then directed the people inside the salon to the back room, where he tied them up with shoelaces. According to Mulero, after they left the beauty salon, he and Garcia "walked back" to Paterson. Some time after leaving the salon, Mulero threw away the toy gun, which he said resembled a black revolver.
Mulero raises the following issues on this appeal:
POINT I: THE REPEATED REFERENCES TO EVIDENCE THAT THE CO-DEFENDANT HAD IMPLICATED MULERO IN THE ROBBERY VIOLATED MULERO'S RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV, N.J. ...