On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. I-03-06-2173.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2008
Before Judges Carchman, R. B. Coleman and Simonelli.
Defendant, Michael McCall, appeals from his conviction in the Law Division following a jury trial in November 2005, of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count three); second-degree reckless manslaughter, N.J.S.A. 2C:11-3a(3), as a lesser-included offense of first-degree murder (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count six). Merging counts one and two, the court sentenced defendant on count three to a forty-five year term of imprisonment with a period of parole ineligibility for eighty-five percent of that term and to concurrent sentences for lesser terms on the remaining convictions. We affirm.
On December 6, 2002, Carlos Velez was shot and killed while working at his store, the Elwood Mini Market located at 96 Elwood Avenue in Newark. Earlier that day, defendant McCall and co-defendants, Andreas Motley, Robert Luma, and Rashawn Stevens, conspired to commit a robbery of the mini-mart and proceeded to arm themselves with a .380 handgun and a 9mm handgun, both firearms supplied by defendant. At the time of the robbery, defendant was 42 years old. The other three participants were all under 18 years of age.
The following account of the robbery is taken from co-defendant Motley's trial testimony, given pursuant to a plea agreement whereby Motley admitted that he robbed and shot Mr. Velez.*fn1 Once they arrived at the store, Luma and Stevens waited at the cab while defendant and Motley entered the store. Defendant was armed with the 9mm handgun and Motley with the .380. Motley approached the counter while defendant positioned himself at the front door. The men drew their weapons and demanded money. When Mr. Velez began to side-step, defendant told Motley, "Hit him," whereupon Motley shot Velez dead. Attempts to open the cash register were unsuccessful, and defendant was only able to take the register's change dispenser. The four men returned to defendant's apartment by cab and divided the proceeds from the dispenser, which totaled less than ten dollars. Also present at the apartment was Barbara Manning, defendant's girlfriend and mother of his two children. The four men and Manning spent the remainder of the day in defendant's apartment smoking marijuana.
On December 10, 2002, Newark Police Detectives were questioning Luma in connection with another robbery and homicide which had occurred near a sports store. Results of ballistic testing revealed that a shell casing recovered from the sports store robbery and one from the mini-mart robbery were fired from the same .380 handgun. In giving his statement about the sports store robbery, Luma also implicated himself in the mini-mart robbery, and based on Luma's statements the detectives decided to question defendant, who was in custody on unrelated charges. Defendant was advised of his Miranda*fn2 rights, which he waived, and he subsequently executed a written statement admitting the events surrounding Mr. Velez's death.
On appeal, defendant raises the following arguments:
POINT I - DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE STATE ELICITED TESTIMONY THAT A NON-TESTIFYING CO-DEFENDANT HAD IMPLICATED DEFENDANT IN THE ROBBERY AND MURDER. (Not Raised Below.)
POINT II - THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY ALLOWING THE STATE TO INTRODUCE IRRELEVANT, HIGHLY PREJUDICIAL EVIDENCE THAT DEFENDANT IMPREGNATED AN UNDERAGE GIRL, BEAT HIS GIRLFRIEND, SMOKED MARIJUANA, PARTICIPATED IN OTHER UNRELATED ROBBERIES, LED A "GANG" OF TEENAGERS, AND WAS INCARCERATED ON UNRELATED CHARGES.
POINT III - THE ABSENCE OF A LIMITING INSTRUCTION THAT THE CO-DEFENDANT'S GUILTY PLEA CAN ONLY BE USED TO ASSESS THE CO- DEFENDANT'S CREDIBILITY AND NOT AS SUBSTANTIVE EVIDENCE OF DEFENDANT'S GUILT DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below.)
POINT IV - THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A FORTY-FIVE YEAR TERM BECAUSE A PROPER ANALYSIS OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
We shall address each of defendant's arguments in turn.
For the first time on appeal, defendant contends that his right to confront his accusers under both the United States and New Jersey Constitutions was violated when the State elicited hearsay evidence that Luma, a non-testifying co-defendant, had implicated defendant in the mini-mart robbery. Specifically, he asserts that under State v. Young, 46 N.J. 152 (1965), and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968), the trial judge erred in allowing a detective to testify that Luma provided police with a statement that, in some way, linked defendant to the mini-mart robbery and ultimately led to defendant's interrogation and arrest. The trial court explained and we acknowledge that "[a] defendant may be prejudiced by the admission in evidence against a co-defendant of a statement or confession made by that co-defendant. This prejudice cannot be dispelled by ...