February 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CARLOS RODRIGUEZ, A/K/A CARLOS J. RODRIGUEZ, CARLOS J. CABRERA, AND CARLOS J. RODRIGUEZ CABRERA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-1906.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2009
Before Judges Lisa and Reisner.
After he failed to appear on four scheduled trial dates, defendant Carlos Rodriguez was tried in absentia and convicted of the following: first-degree arson, N.J.S.A. 2C:17-1d; second-degree conspiracy to commit aggravated arson, N.J.S.A. 2C:5-2; and second-degree aggravated arson, N.J.S.A. 2C:17-1a(2). After merger, he was sentenced to an aggregate fifteen years in prison, plus applicable fines and fees. Finding no merit in defendants appeal from the conviction and the sentence, we affirm.
The following facts are relevant to the trial in absentia. The case was pre-tried on February 3, 2006, in the presence of counsel, defendant, and an interpreter. Defendant initialed each page of the pre-trial order, except for the last page, on which he and his attorney placed their complete signatures. The pre-trial memorandum set a trial date of April 3, 2006.
The memorandum clearly advised defendant of the consequences of failure to appear for the trial. Paragraph 20 of the memorandum stated: "Defendant and all counsel are hereby directed to return to court on the following date at 9:00 a.m. ready for trial. There will be no further notices required." Immediately above defendant's signature there appeared the following language:
I have been advised of my right to be present at the trial of this case. If I fail to appear for trial on the date scheduled for trial, the Court has the right to conduct the trial in my absence. If my case is not reached for trial on that date the judge will schedule a new date for trial. If I am not present on the original trial date, or any rescheduled trial date, the trial will proceed without me and I will be bound by the jury's verdict.
Further, the transcript of the February 3, 2006 hearing reveals that Judge Ravin was scrupulously careful to ensure that the Spanish-speaking interpreter was translating for defendant so that defendant would understand the proceedings. Judge Ravin read to defendant the same warnings contained in the pre-trial memorandum concerning defendant's obligation to appear for the trial and advised him that "[i]f you fail to appear for trial, on April 3rd, 2006, the Court has the right to conduct the trial in your absence." Defendant indicated that he understood this.
The initial trial date was adjourned at the prosecutor's request. Defendant did not appear for the next scheduled trial date on April 17, 2006, and the court issued a bench warrant for his arrest. Defendant did not appear for the next trial date on April 20, 2006. Finally, when defendant again failed to appear for the next scheduled trial date on May 2, 2006, the judge held the trial in absentia. Before making that decision, the judge ascertained from defense counsel that counsel had repeatedly tried to contact defendant, and had left telephone messages alerting defendant as to the trial date and his obligation to appear. The judge concluded that "defendant has voluntarily absented himself from this trial."
The following is the most pertinent evidence introduced at the trial. According to Captain Rufus Jackson of the Newark Fire Department Arson Squad, on April 23, 2005, he was called to the scene of a burning Toyota Camry with Florida plates. On the ground near the car, he found a "smoldering black jacket," a cell phone, and a gasoline can. The car was traced to co-defendant Aracelly Nina DeGrant, and the jacket and cell phone were traced to co-defendant Elvis Vasquez-Almonte.
DeGrant testified that the car belonged to her husband, and that she drove the car from Florida to New Jersey. Because she could not afford the car payments, she arranged with defendant to have someone "get rid" of the car for her. She explained to defendant that she was having "financial problems." He told her that he could "get somebody for me to get rid of the car." They eventually negotiated a price of $500. At defendant's direction, DeGrant drove the car to Elizabeth and parked it in front of a bar. Defendant met DeGrant at the bar and got the car key from her. That evening, DeGrant called the police and reported the car stolen. She later learned that the car had been burned and that co-defendant Elvis Vazquez-Almonte had been injured while setting fire to the car. According to DeGrant, she met both defendant and Vazquez-Almonte through her cousin, who babysat defendant's child. When DeGrant was eventually confronted by the police, she confessed her involvement to Investigator Ramon Irizarry, implicated defendant, and entered into a plea bargain conditioned on testifying against defendant at trial. DeGrant testified that she was known as "Betty."
Investigator Ramon Irizarry, of the Arson Unit, testified that when he arrived at the scene of the fire, he retrieved the cell phone and found a number in its directory labeled "my phone number." When he called the number, "Elvis" answered the call, admitted losing a cell phone, and agreed to meet Irizarry at his office to retrieve the lost phone. When co-defendant Elvis Vasquez-Almonte appeared at Irizarry's office, Irizarry observed that his face was badly burned. During the interview, Vasquez-Almonte admitted ownership of the phone and the burned jacket, admitted his involvement in the arson, and implicated defendant and "Betty." In his testimony, Irizarry also identified the police report that DeGrant had filed falsely attesting that the car had been stolen. Irizarry confirmed that when he interviewed DeGrant, she confessed her involvement and implicated defendant.
As a result, Irizarry arrested defendant on July 7, 2005. After being read his Miranda*fn1 rights, defendant gave a statement in Spanish to Irizarry, who also spoke Spanish. Defendant explained that DeGrant asked him to have her car burned "because she did not want it anymore." Defendant explained that he did not burn cars, but offered to "crash it and total it." When DeGrant insisted she wanted it burned, defendant arranged with his "friend Elvis" to burn the car. He stated that "Betty" DeGrant gave him $500. Defendant then explained to Irizarry in some detail how he and Elvis planned the crime, and how Elvis was burned while setting the car on fire.
Vasquez-Almonte also testified at the trial. He admitted that defendant paid him $100 to set the car on fire. Defendant told Vasquez-Almonte that a woman had hired him to get rid of her car. Vasquez-Almonte described the commission of the arson in some detail. He also testified that he was burned in the fire and left his cell phone and jacket at the crime scene. After Vasquez-Almonte set the fire, defendant took him to the hospital to get treatment for the burns. On defendant's advice, he used a false name at the hospital. At the time of his trial testimony, Vasquez-Almonte had been charged with arson, but had not made any plea agreement.
In his opening statement and in his closing, defense counsel emphasized to the jury that the State's witnesses were not worthy of belief, because they were admitted criminals who were testifying in order to obtain favorable treatment from the prosecution.
In the charge to the jury, to which both counsel agreed, the judge instructed the jury that the testimony of DeGrant and Vasquez--Almonte must "be given careful scrutiny" because they admitted their involvement in the crime, and that the jurors must consider whether their testimony "was influenced by the hope or expectation of any favorable treatment or reward, or by any feelings of revenge or reprisal."
On this appeal, defendant raises the following points for our consideration:
THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS WHEN THE COURT PROCEEDED IN ABSENTIA IN VIOLATION OF U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, ¶¶ 1, 9 AND 10. (NOT RAISED BELOW).
A. Rodriguez Was Not Given Adequate Notice Of His Right To Be Present And The Consequences Of A Failure To Appear.
B. The Court Failed To Make An Adequate Inquiry Into Rodriguez's Failure To Appear Before Deciding To Proceed In Absentia.
DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE FOR A CONTINUANCE OF TRIAL AND IN NOT FILING FOR A NEW TRIAL PURSUANT TO R. 3:20-2. (NOT RAISED BELOW)
THE DEFENDANT WAS HIGHLY PREJUDICED WHEN THE COURT FAILED TO CORRECTLY INSTRUCT THE JURY ON THE LIMITED USE OF THE TESTIMONY OF COOPERATING CO-DEFENDANTS. (NOT RAISED BELOW)
THE SENTENCE IS EXCESSIVE BECAUSE THE COURT FAILED TO CONSIDER ALL THE RELEVANT MITIGATING FACTORS.
We will not address defendant's claim that his counsel rendered ineffective assistance, without prejudice to defendant's right to raise this issue in a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nonetheless, we add the following comments.
Pursuant to Rule 3:16(b), a defendant's waiver of the right to be present for trial may be inferred based on "the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date." See State v. Hudson, 119 N.J. 165 (1990). In this case, defendant did not appear for trial, despite receiving written notice and clear instruction from the judge at the pre-trial hearing as to his obligation to appear for trial and the consequences of failure to appear. He also did not file a motion for a new trial prior to sentencing, pursuant to Rule 3:20-2: "A motion for a new trial based on a claim that the defendant did not waive his or her appearance for trial shall be made prior to sentencing."
As the Supreme Court held in State v. Finklea, 147 N.J. 211, 213 (1996), "once a defendant has been given actual notice of a scheduled trial date, nonappearance on the scheduled or adjourned trial date is deemed a waiver of the right to be present during the trial absent a showing of justification by the defendant." Further, when a defendant fails to make a motion for a new trial pursuant to Rule 3:20-2, that failure "constitutes a second waiver pursuant to Rule 3:16(b)." Finklea, supra, 147 N.J. at 221. In this case, defendant persistently failed to appear on scheduled trial dates, despite the court's having granted adjournments and issued a bench warrant, and despite defendant's attorney having made repeated efforts to contact defendant including leaving messages directing defendant to appear for trial. We find no error in the trial court finally holding the trial in absentia.
Defendant also contends, for the first time on appeal, that the trial court should have included an instruction cautioning the jury that the co-defendants' admissions of their own guilt could not be considered substantive evidence of defendant's guilt. See State v. Adams, 194 N.J. 186, 208 (2008). We find no plain error in the omission of this charge, which defense counsel did not request. See R. 2:10-2; R. 1:7-2. Defendant has not shown that omission of the instruction was "clearly capable of producing an unjust result." R. 2:10-2. The evidence of defendant's guilt was overwhelming, and we find no possibility on this record that the omission of the instruction might have produced a miscarriage of justice. See Adams, supra, 194 N.J. at 208-09.
Finally, we find no abuse of discretion or other error in Judge Ravin's decision, cogently explained on the record on April 26, 2007, to impose a fifteen-year sentence on this defendant for first-degree arson. See State v. Roth, 95 N.J. 334, 363-65 (1984).