On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-07-0681.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 7, 2009
Before Judges Cuff, C.L. Miniman and Waugh.
Posing as an immigration official, defendant Ray Jackson gained entry to the apartment shared by a twenty-two year old woman and her husband in Paterson. According to the young woman, defendant sexually assaulted her and stole her jewelry. Based on his conduct following the burglary and sexual assault, defendant was also charged with stalking.
In a separate indictment, defendant was also charged with several offenses, including attempted murder, stemming from his alleged solicitation of someone to kill the victim while defendant was awaiting trial on the first set of charges. The charges in the second indictment were joined with the first indictment and tried together.
A jury found defendant guilty of second degree burglary, N.J.S.A. 2C:18-2 (Count One); and fourth degree impersonating a police officer, N.J.S.A. 2C:28-8b (Count Four). On the burglary conviction, defendant was sentenced to an extended term of twenty years imprisonment with an 85% No Early Release Act (NERA)*fn1 period of parole ineligibility. The judge imposed a consecutive eighteen-month prison term with nine months of parole ineligibility on the impersonating an officer conviction. The jury found defendant not guilty of stalking and failed to reach a verdict on the following charges: aggravated sexual assault, robbery, and all charges in the second indictment. At sentencing the prosecutor dismissed the remaining charges. The appropriate fees and penalties were also imposed.
On appeal, defendant raises the following arguments:
THE TRIAL COURT COMMITTED HARMFUL ERROR IN GRANTING THE STATE'S MOTION FOR JOINDER OF INDICTMENT NO. 03-07-0681 AND INDICTMENT NO. 04-08-1078.*fn2
(A) THE TRIAL COURT'S R. 404(B) ANALYSIS WAS FLAWED.
(B) THE DEFENDANT WAS UNFAIRLY PREJUDICED BY JOINDER.
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE OF A VIOLATION OF THE SEQUESTRATION ORDER (NOT RAISED BELOW).
THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE OUT-OF-COURT IDENTIFICATION BY MS. BAEZ WAS UNRELIABLE AND TAINTED HER SUBSEQUENT IN-COURT IDENTIFICATION.
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN ERROR IN FAILING TO VOIR DIRE THE JURY WHEN A DELIBERATING JUROR REPORTED POSSIBLE JURY MISCONDUCT.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S PRO SE POST-VERDICT MOTION FOR A NEW TRIAL BECAUSE THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND RESULTED IN A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.
IMPOSITION OF AN AGGREGATE BASE CUSTODIAL SENTENCE OF 211/2 YEARS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL SENTENCING DISCRETION.
(A) THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING AN EXTENDED TERM SENTENCE ON THE DEFENDANT'S CONVICTION FOR SECOND DEGREE BURGLARY ON COUNT ONE.
(B) IMPOSITION OF AN EXTENDED BASE TERM OF 20 YEARS ON THE DEFENDANT'S CONVICTION ON COUNT ONE WAS MANIFESTLY EXCESSIVE.
(C) IMPOSITION OF CONSECUTIVE SENTENCES WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S SENTENCING DISCRETION.
In a pro se supplemental brief, defendant raises the following arguments:
POINT I- THE TRIAL COURT ERRED IN DENYING THE DEFENDANTS MOTION TO SUPPRESS VIOLATING THE DEFENDANTS CONSTITUTIONAL RIGHTS UNDER U.S. CONST. AMEN. 4 AND THE N.J. CONST. ART. 1 PARA. 7.
(A) THE DEFENDANT WAS SEIZED ILLEGALLY FROM HIS HOME AND THE FRUITS OF THE ILLEGAL SEIZURE SHOULD HAVE BEEN SUPPRESSED.
(B) THE DEFENDANT[']S CELLPHONE WAS SEIZED ILLEGALLY AND SHOULD HAVE BEEN SUPPRESSED.
(C) THE TRIAL COURT ERRED IN DENYING THE DEFENDANT[']S MOTION TO SUPPRESS CELLPHONE SUBSCRIBER INFORMATION WHICH WAS OBTAINED IN VIOLATION OF DEFENDANT[']S RIGHT TO PRIVACY.
POINT II- THE TRIAL COURT ERRED WHEN IT ALLOWED PERJURED TESTIMONY FROM WITNESSES MARGARITA BAEZ AND EDDIAL LUGO VIOLATING DEFENDANT[']S RIGHTS UNDER THE U.S. CONST. SIXTH AND FOURTEENTH AMENDMENTS AND THE NEW JERSEY CONSTITUTION ART. 1 PARA. 1 AND 10.
POINT III- THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT[']S MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL PURSUANT TO RULES 2:10-A AND 3:18-2 THAT THE JURY'S VERDICT WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE.
In 2003, a twenty-two year old woman (the victim) lived in Paterson with her husband. She was born in the Dominican Republic; he was a United States citizen. During 2001, she applied for permanent residency with the Immigration and Naturalization Service (INS).
The victim worked in customer service at a market in Paterson. On February 13, 2003, another worker at the market took a phone call from a male who said he was from INS and it was important that he reach the victim. The worker gave the man the victim's cell phone ...