On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-08-0657.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Alvarez and Coburn.
Defendant Victor Vasquez was found guilty by a jury of first-degree robbery, N.J.S.A. 2C:15-1a (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count five); and third-degree hindering apprehension, N.J.S.A. 2C:29-3b(4) (count six). Count two, conspiracy to commit robbery, was dismissed by the State prior to trial. Following appropriate mergers, defendant was sentenced on December 14, 2007, to fifteen years in New Jersey state prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one, first-degree robbery. All other sentences were run concurrently to count one, namely four years imprisonment on count three and four years imprisonment on count six.
The facts developed at trial were as follows. At approximately 2:00 a.m. on July 2, 2005, Jaciel Cruz, Miguel Moran and Luis Lopez-Sosa returned to Cruz's apartment in Bound Brook after attending a movie and purchasing some food at a nearby convenience store. As they returned, they saw a group of men*fn1 standing outside of a building next to a bar across the street from them. The group approached; two were concealing something behind their backs. The group asked Moran, Lopez-Sosa and Cruz if they were in a gang, which they denied. A man later identified as defendant then produced a kitchen knife from behind his back and demanded money from the victims. A second member of the group, who was wearing a dark baseball jersey, produced a baseball bat from behind his back. When Cruz refused to turn over his money, defendant tried to stab him and cut Cruz's finger as Cruz attempted to deflect the weapon. Defendant then pointed the knife at Cruz's chest and instructed a member of his group to go through Cruz's pockets. Cruz's wallet and his money were taken, approximately $25 or $30. Defendant searched through Moran and Lopez-Sosa's pockets, taking about $20 or $30 from the latter. Lopez-Sosa, who was punched in the face during the encounter, asked for his wallet back and it was returned to him.
All three victims wore baseball caps: Moran's cap was green and white; Cruz's was black; and Lopez-Sosa's was white. Defendant took the baseball caps from Moran and Cruz, while the man with the baseball bat took Lopez-Sosa's hat. As the assailants began to leave, Moran asked for the hats back. Defendant turned around and slashed at him, but Moran jumped away and the group proceeded up the street.
Cruz dialed 911 from a nearby pay phone. The police arrived, together with an ambulance to treat Cruz for his stab wound. As Cruz was standing on the sidewalk speaking to the officers, he pointed down the street eastward and said, "there's one of them now." Bound Brook Police Officer Peter Romanyszyn looked up and saw a man in a white t-shirt entering the front of an apartment building about a block away. He radioed other officers who were searching the area looking for the suspects and they immediately returned. The victims were directed to remain in Cruz's apartment while the suspects were apprehended.
Patrolmen Vito Bet and Jason Gianotto, Sergeant Richard Colombaroni, and Romanyszyn entered the three-story building where the suspect had been seen. Bet and Gianotto discovered a knife hidden underneath a mat in the foyer. Gianotto and Romanyszyn had reached the second floor when Gianotto heard the sound of a latch unlocking from a nearby apartment and saw a man emerge who matched the description of one of the robbers. After Gianotto detained him, Colombaroni, Bet and Romanyszyn went in and patted down the occupants for weapons. Three other men were arrested, and when additional officers arrived, the apartment was thoroughly searched. Gianotto and Colombaroni entered a back bedroom where two men, fully clothed and lying on a bed over the covers, were pretending to be asleep. Gianotto saw the handle of a bat protruding from underneath, and he testified that the heart of one of the suspects was beating with such force that "you could actually observe [it] beating right through his shirt." These two men were detained as well. The officers subsequently found two baseball caps out on a roof accessible through a window.
At that point, Cruz, Moran and Lopez-Sosa were seated in separate police cars located approximately fifty feet from the building entrance. An officer sat inside with each victim; there was no communication between patrol cars. The officers trained vehicle spotlights on the entrance, and the suspects were brought out individually. As they walked through the door, the victims were asked if they could make an identification. Defendant, the third person escorted from the building, was identified by all three victims as the person who wielded the knife.
Defendant was tried jointly with Juan Merino Rafael and Jose Merino Ruiz. Merino Raphael was found guilty of second-degree robbery and third-degree hindering apprehension. Merino Ruiz was acquitted of all charges, however, he was apprehended by United States Immigration and Customs Enforcement while in jail on unrelated offenses. Three other men were also charged as a result of the incident; Rafael Garcia, Javier Romero and Sergio Lopez. All entered guilty pleas prior to defendant's trial. Garcia received a five-year sentence on August 17, 2007. An I.N.S. detainer issued against Romero while he was in custody awaiting sentencing on an unrelated indictment. Lopez failed to appear for sentencing on June 22, 2007, and as of November 2007, remained a fugitive.
Prior to trial, Merino Rafael's attorney indicated to the court that in his view there was a "gang component" to the defense; he subsequently requested that the court exclude any references to gang involvement. When the case was reported in a local newspaper, gang involvement had been mentioned in the story. Not having the transcript of jury selection, we do not know if the jury was asked whether the possibility of gang involvement would influence their ability to try the matter fairly. In his preliminary opening instruction, the judge made no mention of the potential of gang involvement. During the trial, defendant's attorney cross-examined Moran in the following fashion:
Q: Okay. What happened next? And by next I mean after Jaciel Cruz got up?
A: That's when they arrived, they spoke to us and asked us if we were part of a gang.
Q: Okay, Mr. Moran, did you get a chance to count the number of people that were there in front of you?
A: Yes, there was one in front of me, the other one stood next to my brother, and the other three were on the side watching us.
Q: Okay, so there were five people in total?
Q: Now, which one of the five people actually asked you whether you were ...