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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...