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State v. Taveras

July 6, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LISANDRO TAVERAS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-12-2548.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 28, 2009

Before Judges Parrillo and Messano.

Defendant Lisandro Taveras appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty, in absentia, of first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; second-degree theft, N.J.S.A. 2C:20-3; third-degree criminal restraint, N.J.S.A. 2C:13-2(a); third-degree terroristic threats, N.J.S.A. 2C:12-3(b); second-degree possession of a handgun with the purpose to use it unlawfully against another, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Nearly seven years after the jury's verdict, defendant was apprehended and sentenced to sixteen years in prison on the robbery charge, 85% of which was to be served without parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. All other sentences were ordered to run concurrently, and the appropriate financial penalties were imposed.

On appeal, defendant raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED BY DIRECTING THE TRIAL TO PROCEED IN ABSENTIA, AND BY ADVISING THE JURY THAT APPELLANT WAS NOT PRESENT BECAUSE OF A BUSINESS COMMITMENT.

POINT II

THE TRIAL COURT ERRED WHEN IT PERMITTED WITNESSES TO TESTIFY THAT THE TWO COOPERATING DEFENDANT[]S IDENTIFIED APPELLANT AS A PARTICIPANT IN THE CHARGED CRIMES DURING THEIR [POST-]ARREST [] STATEMENTS, AND FAILED TO PROVIDE A LIMITING INSTRUCTION WITH REGARD TO THE USE OF SUCH TESTIMONY, AND PROHIBITED CROSS-EXAMINATION OF ONE OF THE ACCOMPLICES CONCERNING THE ELEMENTS UNDERLYING A PRIOR CONVICTION.

POINT III

TRIAL COUNSEL'S FAILURE TO OBJECT TO APPELLANT'S TRIAL IN ABSENTIA AND THE COURT'S COMMENTS TO THE JURY RELATING THERETO, HIS FAILURE TO MOVE FOR A NEW TRIAL PRIOR TO SENTENCING BASED UPON THE DEFENDANT'S NON-APPEARANCE AT TRIAL, AND HIS FAILURE TO OBJECT TO IMPROPER BOLSTERING TESTIMONY THAT THE TWO COOPERATING CO-DEFENDANTS HAD MADE OUT OF COURT STATEMENTS IDENTIFYING APPELLANT AS ONE OF THE PARTICIPANTS IN THE CRIME, AND TO REQUEST A LIMITING INSTRUCTION WITH REGARD TO SUCH TESTIMONY, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV

THE SENTENCE OF 16 YEARS IMPOSED UPON THE APPELLANT, WHICH EXCEEDED THE PRESUMPTIVE 15 YEAR SENTENCE FOR A FIRST[-]DEGREE CRIME WAS UNCONSTITUTIONAL, WAS TOTALLY DISPARATE TO THE SENTENCES IMPOSED UPON THE MORE CULPABLE CO-DEFENDANTS, AND REPRESENTED AN IMPROPER BALANCE OF THE AGGRAVATING AND MITIGATING FACTORS.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

On December 8, 1999, defendant, along with five others, committed a home invasion robbery in Ridgefield Park. The house was owned by Juan Francisco Torres, also the owner of two jewelry stores in the Bronx. One of defendant's cohorts, known only as Mundo, had previously worked near one of Torres' businesses and knew Torres had a safe in his home. Mundo's plan was for the group to gain entry while Torres was at work through a ruse. Co-defendants Kelvin Sosa and Barbara Gomez would pose as floral delivery ...


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