On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-07-01360-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Newman.
On July 19, 2005, a Bergen County Grand Jury charged defendant Luis Caraballo and co-defendant Elvis Marmolejos with two counts each of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7). Following indictment, defendant moved to sever the trial from his co-defendant because of the statements, oral and written, by co-defendant. The motion judge denied the motion but required the written statement to be redacted by being "blacked out." The parties apparently agreed on the redaction. Tried without a jury, defendant and co-defendant were found guilty of the charges.*fn1
Following the denial of a motion for a new trial on June 28, 2007, the court sentenced defendant to two concurrent ten-year terms of imprisonment with an eighty-five percent NERA*fn2
period of parole ineligibility. The court imposed all appropriate fines and penalties. Defendant appeals. We reverse because of Confrontation Clause violations, conceded by the State, which we find were not harmless beyond a reasonable doubt.
The relevant trial testimony may be summarized as follows. On July 24, 2004, J.S. drove her friend V.B. to J.S's boyfriend's house in West Paterson. While at the house, both girls drank Night Train, a heavy wine. J.S. had three or four cups and V.B. had one or two cups. V.B. received a phone call from a friend.
The girls left and V.B. wanted to stop at Johnny's house to pick up a gift he bought for her from the Dominican Republic.
V.B. insisted on driving because J.S. was driving erratically.
V.B. woke J.S. in front of Johnny's home.
Johnny was waiting for V.B. outside. V.B. opened the car door for J.S. and the three walked into his house. J.S. sat on a bed. While in the house, J.S. saw both defendant and co-defendant, whom she knew from school.
J.S. declined a drink and fell asleep. When she awakened, she felt somebody on top of her and initially claimed that she observed defendant playing with himself. She started to cry and ran from the room. J.S. testified that her pants were off. She also said that she heard someone say "oh shit" and the person who was on top of her got off the bed. She was uncertain whether it was defendant or co-defendant. She took her car keys from V.B., did not want to talk and drove off. Shown her statement to refresh her recollection, she clarified that it was defendant on top of her and co-defendant was in the chair masturbating.
The next morning J.S. went to V.B.'s home to find out if there was anything that V.B. could tell her to refresh her memory as to what happened. V.B. mentioned some things that angered her. J.S. went to the police accompanied by her sister.
V.B. testified that J.S. and she went to J.S.'s boyfriend's house on July 24, 2004. En route, they stopped at a liquor store in Paterson and purchased a bottle of Night Train. The three of them finished the bottle.
After leaving, V.B. asked if it would be agreeable to stop in Garfield at Johnny's apartment to pick up a gift he had bought for her in the Dominican Republic. V.B. was concerned with J.S.'s driving, made her stop and drove the rest of the way to Johnny's house.
V.B. wakened J.S. on arrival and told her that she was going inside to get a present from Johnny. J.S. insisted on going with her. They entered Johnny's room and saw defendant and co-defendant. V.B. testified that they were in the room ...