October 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JULIO MULERO, A/K/A JULIO MULERO SOTO, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 2, 2008
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. CONT. (1947) ART. I, [¶¶] 1, 9, 10. (Not Raised Below)
POINT II: THE TRIAL COURT ERRED IN FAILING TO GRANT MULERO'S MOTION FOR A JUDGMENT OF ACQUITTAL ON THE TWO COUNTS OF THE INDICTMENT CHARGING CRIMINAL RESTRAINT BY INVOLUNTARY SERVITUDE.
POINT III: REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT DURING SUMMATION DENIED MULERO HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART, I, ¶¶ 1, 10. (Not Raised Below)
POINT IV: THIS MATTER SHOULD BE REMANDED FOR A HEARING PURSUANT TO STATE v. ROACH, 146 N.J. 208 (1996) BECAUSE A SIMILARLY SITUATED CO-DEFENDANT RECEIVED A DISPARATE SENTENCE. (Not Raised Below)
POINT V: THE TRIAL COURT'S IMPOSITION OF AN AGGREGATE THIRTY-NINE YEAR SENTENCE OF IMPRISONMENT, THIRTY-FOUR YEARS SUBJECT TO THE NO EARLY RELEASE ACT, WAS EXCESSIVE AND UNDULY PUNITIVE, THEREFORE IT MUST BE REDUCED.
As previously indicated, Point II was rendered moot by the State's concession that the two counts of criminal restraint should have been merged into the robbery convictions for the purposes of sentencing.
Mulero first argues that his constitutional rights to confront the witnesses against him and to due process, U.S. Const. amends. VI, XIV; N.J. Const. art I, ¶¶ 1, 9, 10, were violated when the jury was presented with testimony and argument that led to the inescapable conclusion that he had been identified as the second participant in the robbery by Garcia. In support of his argument, Mulero points to the prosecutor's repeated juxtaposition of the absence of his picture from the first photo array and its presence in the second photo array shortly after Garcia's arrest. He relies on cases such as: State v. Branch, 182 N.J. 338, 350 (2005) ("[B]oth the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged."); State v. Bankston, 63 N.J. 263 (1973); and State v. Taylor, 350 N.J. Super. 20, 33 (App. Div.), certif. denied, 174 N.J. 190 (2002) ("The principle distilled from Bankston and its progeny is that testimony relating inculpatory information supplied by a co-defendant or other non-testifying witness identifying the defendant as the perpetrator of a crime deprives the accused of his or her constitutional rights.") (quotation and citation omitted).
Mulero points particularly to the following excerpt from the direct testimony of one of the investigating officers:
Q: Okay. Now, were you involved in a second showing of photos?
A: Yes, I was.
Q: And what date was that?
A: I believe it was August 1, 2003.
Q: August 1, 2003.
And when was Mr. Garcia apprehended? If you recall.
A: I believe on the night of the 31st.
He also points to the following excerpt from the State's summation:
Mr. Garcia is arrested on 7/31, the first photo -- on 7/31, the first photo array both victims say Garcia and they say that other one and that other one look like him.
Now, after the arrest of Mr. Garcia on 8/1, Mr. Mulero, we have a new photo array and these are people with beards, but included in the second photo array is a photograph of Mr. Mulero. And even with a beard, they both, at this time, discount that first -- that's him, that's the second person even with a beard. How sure are they?
In this case, none of the State's witnesses actually testified that information was obtained from Garcia with respect to Mulero's participation in the robbery. In fact, during the defense cross-examination of the same witness whose testimony is quoted above, the prosecutor requested a conference at sidebar to make sure that no such testimony would be inadvertently elicited by defense counsel. Instead, Mulero's argument is based upon the State's repetitive, temporal juxtaposition of the arrest of Garcia and the inclusion of Mulero in the second photo array.
Based upon those facts, we do not agree with Mulero's assertion that the testimony constituted reversible hearsay testimony or a deprivation of constitutional rights under the Bankston line of cases. Even if there had been such conduct, we would have to consider whether it constituted plain error, inasmuch as there was no objection during the trial. R. 1:7-2; R. 2:10-2. See also Branch, supra, 182 N.J. at 353; State v. Macon, 57 N.J. 325, 336-37 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
Unlike Branch, supra, which also involved a Bankston issue, 182 N.J. at 353, this was not a close case in terms of Mulero's identification as the second participant in the robbery. Not only was Mulero identified at trial by both Corradino and Royce, he had confessed to his participation in the robbery and his confession was introduced as part of the State's case.
While there is "no mathematically precise formula for deciding whether a trial error creates a reasonable doubt that would not otherwise have existed concerning defendant's guilt," ibid., we are satisfied that, if there was trial error on this issue, it was not "clearly capable of producing an unjust result" and is consequently harmless. Bunch, supra, 180 N.J. at 541.
Mulero also complains about portions of the State's summation, contending that it "injected biased and inflammatory commentary, conjecture, and opinion to improperly appeal to the juror[s'] emotions." Because the issue of impropriety in the prosecutor's summation was not raised by defendant at trial, this argument must also be evaluated under the plain error standard.
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). Indeed, the Supreme Court has recognized that "criminal trials 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)).
Having reviewed the State's summation in context and in light of the applicable law, we discern no basis to conclude that the prosecutor's statements "deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83.
In his last two points on appeal, Mulero seeks either a reduction in his sentence or a remand for a hearing under Roach, supra, based upon the excessiveness of his sentence in comparison to that of his co-defendant Garcia. We understand Mulero to argue that his sentence was excessive when viewed by itself and particularly excessive when compared to Garcia's.
Mulero was sentenced to an aggregate thirty-nine years in prison, thirty-four of which were subject to NERA. He received two consecutive seventeen year terms for the two armed robberies, both of which were subject to NERA, plus an additional consecutive five year term for unlawful possession of a weapon. In contrast, even though Garcia participated in the same two-victim armed robbery as Mulero, although pleading only to one count, as well as a separate armed robbery in which he had apparently possessed a weapon, he was only sentenced to two concurrent fifteen year terms, subject to NERA. Consequently, Mulero, who had participated in only one overall criminal event, received a sentence more than twice as long as Garcia, who had participated in two separate criminal events.
Our role in reviewing sentences imposed by the trial courts is limited.
An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984). Only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience" should a sentence be modified on appeal. Id. at 363-64. [Roach, supra, 146 N.J. at 230.]
We do not consider whether we would have reached a different sentence, but whether "'on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review.'" State v. Munoz, 340 N.J. Super. 204, 222 (App. Div.), certif. denied sub nom. State v. Pantoja, 169 N.J. 610 (2001) (quoting State v. Ghertler, 114 N.J. 383, 388 (1989)).
Mulero challenges the trial judge's findings with respect to aggravating factors. The trial judge denied the State's motion to impose an extended term, based upon concerns about Mulero's criminal record from Puerto Rico. However, he did consider the fact that there was a record in Puerto Rico in applying aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the "extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted." We see no error in that decision, inasmuch as there were offenses in Puerto Rico and the pending convictions were for more serious offenses. Nor do we consider it error, or "double-counting" pursuant to State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 104, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), for the trial judge to have considered that record in connection with his finding of aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the "risk that the defendant will commit another offense."
When viewed in the context of the facts of this case and the applicable law, we discern no reversible error in the trial court's imposition of an aggregate thirty-nine year sentence with NERA applicable to thirty-four of those years. There were two victims in the armed robbery, both of whom were tied to a chair. There was also a conviction for unlawful possession of a weapon. As the Supreme Court noted in Yarbough, supra, there are to be "no free crimes" under our sentencing guidelines. 100 N.J. at 643.
We have concluded, however, that the trial judge should have addressed specifically the issue of the disparity between the sentences given to Mulero and Garcia, especially in light of the fact that Garcia was being sentenced for the same crime as Mulero and for an additional, totally separate, criminal event. As the Supreme Court held in Roach, supra, "[d]isparity may invalidate an otherwise sound and lawful sentence." 146 N.J. at 232.
We acknowledge that "[a] sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." [State v. Hicks, 54 N.J. 390, 391 (1969)]. However, although the sentence imposed on defendant falls within the statutory limits mandated for the offense, "there is an obvious sense of unfairness in having disparate punishments for equally culpable perpetrators." State v. Hubbard, 176 N.J. Super. 174, 175 (Resentencing Panel 1980) (citing State v. Whitehead, 159 N.J. Super. 433 (Law Div. 1978), aff'd, 80 N.J. 343 (1979)). The purpose of the guidelines is to promote fairness and public confidence in the "even handed justice of our system." Hicks, supra, 54 N.J. at 391. The question therefore is whether the disparity is justifiable or unjustifiable.
[Id. at 232-33.]
One of the Supreme Court's concerns in Roach was the size of the disparity between the sentence then under review and that of the co-defendant - a difference of thirty years. Id. at 233. While the difference here is not quite as large, we believe that a difference of twenty-four years requires specific analysis and consideration by the sentencing judge, particularly in light of the consequences of the period of parole ineligibility. Consequently, while we affirm the sentence imposed upon Mulero on its own merits, we remand the matter to the trial court, without retaining jurisdiction, for a determination of whether the resulting disparity is justifiable.
In summary, we affirm Mulero's conviction and his sentence on its own terms, but remand for further consideration by the trial judge as to the impact of the disparity between the sentences imposed upon Mulero and Garcia. We do not address the convictions for criminal restraint by involuntary servitude in light of the State's concession at oral argument that they merge with the armed robbery convictions.
Affirmed in part and remanded in part.