February 5, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MELVIN ROLANDO-PADILLA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-1280.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Lisa, Baxter and Coburn.
A jury found defendant guilty of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (Count One); first-degree armed robbery, N.J.S.A. 2C:15-1 (Count Two); third-degree criminal restraint, N.J.S.A. 2C:13-2 (Count Three); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (Count Eight); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Nine); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (Count Eleven). After merging Count Eleven with Count Two and Count Eight with Count Nine, the judge sentenced defendant to the following concurrent terms of imprisonment: seven years on Count One, fourteen years on Count Two, four years on Count Three, and four years on Count Eight. The sentence imposed on Counts One and Two included parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, for eleven years, ten months and twenty-five days.
Around 6:00 or 6:30 p.m., on July 8, 2005, Adan Osorio Rodriguez, whose last name was Osorio in the record, went to New Brunswick, cashed a payroll check, and around 8:00 p.m. arrived at a house of prostitution at 313 Handy Street. Jose Alvarenga let Osorio in and brought him to a room upstairs. There, defendant pointed a gun at Osorio, tied his hands, and took his money. Defendant and Alvarenga then took Osorio to another room, which held two men whose hands were also tied. During the next two hours, two more bound victims were placed in the room.
Defendant and Alvarenga left, and shortly thereafter Osorio freed himself and one of the other victims. About five or ten minutes later, Osorio saw New Brunswick police officers detaining Alvarenga, who had been stopped for behaving suspiciously. Osorio told the police what Alvarenga and defendant had been doing. The police arrested Alvarenga and went into the building, and then went to the police station with Osorio and two other victims. After giving a brief statement, Osorio went at about midnight to a nearby train station to go home, and saw defendant on the platform apparently waiting for a train. Osorio returned to the ground level and, at his request, a taxi dispatcher called for the police.
While waiting for the police, Osorio noticed that a train was arriving. He ran back to the platform and confronted defendant, detaining him until the train left. Shortly thereafter, the police arrived, but apparently they were not New Brunswick police officers. The police told Osorio to leave, and he walked back to the police station. At about 1:00 a.m., Osorio gave one of the officers a second statement and a full description of defendant. New Brunswick police officers then went to the train station, saw defendant, who matched the description given by Osorio, and brought defendant back to the police station. Osorio looked at defendant from behind a oneway mirror and identified him as the robber with the gun. Defendant provided the police with his home address in Westbury, New York. Earlier in the evening, Alvarenga had provided his home address in Westbury, New York. Osorio identified Alvarenga and defendant in court at trial. The jury found both men guilty.
On appeal, defendant offers the following arguments:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO RECORD AND DOCUMENT THE OUT-OF-COURT IDENTIFICATION EVIDENCE AND PROCEDURE. (Not Raised Below.)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE. (Not Raised Below.)
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ADMISSION OF THE CO-DEFENDANT'S HEARSAY STATEMENT IMPLICATING THE DEFENDANT IN THE COMMISSION OF THE CRIMES. (Not Raised Below.)
THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATE CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LAW OF PRIOR OMISSIONS. (Not Raised Below.)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF ORAL STATEMENTS (A KOCIOLEK CHARGE) NOTWITHSTANDING THE STATE'S RELIANCE ON THE ORAL STATEMENTS TO PROVE ITS CASE. (Not Raised Below.)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT. (Not Raised Below.)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS. (Not Raised Below.)
THE DEFENDANT'S SENTENCE IS EXCESSIVE. (Not Raised Below.)
A. THE TRIAL COURT ERRONEOUSLY FAILED TO MERGE THE CONVICTION FOR CONSPIRACY WITH THE CONVICTION FOR ROBBERY.
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
C. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
After carefully considering the record and briefs, we are satisfied that with one exception all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The sole exception is the failure of the judge to merge Count One into Count Two. The State concedes that a remand is necessary to correct that error. We add the following comments respecting the other points raised by defendant.
Defendant relies on State v. James, 144 N.J. 538 (1996), and State v. Earl, 60 N.J. 550 (1972), for his first point that his due process rights were violated by the failure of the police to obtain a detailed description of defendant from Osorio when he first came to the police station. Neither case upholds the offered proposition of law.
Defendant made no objection at trial to the in-court or out-of-court identifications. Nevertheless, he now argues under his second point that the out-of-court identification at the police station was plain error. Applying the principles set forth in State v. Romero, 191 N.J. 59, 78-79 (2007), we are obliged to reject the argument. See also, State v. Adams, 194 N.J. 186, 204-05 (2008).
Under his third point, defendant claims that the admission of Alvarenga's hearsay statement indicating where he lived violated Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 1622, 20 L.Ed. 2d 476, 479 (1968) and State v. Young, 46 N.J. 152, 158-59 (1965). But those cases concern admissions of guilt, and Alvarenga's address was not such an admission.
Under his fourth point, defendant argues that the judge erred by failing to give a charge on prior inconsistent statements. In fact, the subject was touched on by the judge during his charge. Furthermore, there is no evidence that Osorio was asked for a full description of defendant when he first went to the police station. Consequently, his reference to the kind of shirt defendant was wearing on that occasion was not inconsistent with the full description he gave after returning to the police station from the train station. Thus, the main case on which defendant relies, State v. Allen, 308 N.J. Super. 421, 429 (App. Div. 1998), is inapplicable.
Under his fifth point, defendant argues that the testimony regarding his address and Alvarenga's address required a Kociolek charge. State v. Kociolek, 23 N.J. 400, 421 (1957). Apart from the fact that these statements were in fact recorded by the police when the information was received, plain error is not to be found when a Kociolek charge has not been given sua sponte unless unusual circumstances are present, which is hardly the case here. State v. Jordan, 147 N.J. 409, 428 (1997).
We conclude by noting that none of the remarks made by the prosecutor, as to which there was no objection, constituted error, let alone plain error; and that the fourteen year sentence for robbery should not be disturbed since it was below the mid-term of fifteen years and since it clearly appears that the mitigating factors did not outweigh the aggravating factors.
Affirmed with the exception of the sentence imposed on the conspiracy count. Remanded for correction of the sentence by entry of an amended judgment merging the conspiracy into the robbery count.
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