On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-07-0691-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 18, 2009
Before Judges Cuff and C.L. Miniman.
Defendant Bruce B. Reyes appeals from a judgment convicting him of third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b, and violation of probation on which a sen- tence of four years imprisonment was imposed on July 17, 2007. Defendant also appeals from a judgment entered the same day convicting him of second-degree robbery, contrary to N.J.S.A. 2C:15-1; fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a; and fourth-degree obstructing the administration of law, contrary to N.J.S.A. 2C:29-1, on which an aggregate term of ten years imprisonment was imposed. The sentences were to be served consecutively. We now affirm his various convictions and the aggregate ten-year sentence, but remand for clarification or reconsideration of the four-year sentence.
On March 27, 2006, Patrolman Franklin Idrovo of the Elizabeth Police Department was assigned to a plain-clothes unit working the late-night shift in an unmarked vehicle with his partner, Patrolman Raul DeLaPrida, also in plain clothes. At about 11:50 p.m., they were on High Street when, from ten to fifteen feet away, they observed several young men engaging in what they initially thought was horseplay. One of the men, Devonne Figueroa, was holding another man, Jose Luis Sotelo, in a "full Nelson," with Sotelo's arms above his head and Figueroa's hands locked behind Sotelo's neck. When the officers observed defendant punch Sotelo in the neck and then reach into his pocket and take his wallet, they knew they were observing a robbery in progress.
Idrovo stopped his vehicle just beyond the men while defendant was looking through Sotelo's wallet. The two officers got out of their vehicle. As they walked to the sidewalk, they observed another group of three men a few feet away from the first group. One of those men, Carlos M. Nunez, was lying in a fetal position and was being punched, kicked, or both, while the other two men had their hands in Nunez's pockets. The police officers said, "Police. Stop. You are under arrest." The four perpetrators took off running south on High Street.
Idrovo went after defendant, never losing sight of him. Idrovo shouted to defendant, "Stop. Police. Stop running. You are under arrest." Idrovo chased defendant down High Street to Second Avenue, then to South Seventh Street, where he grabbed defendant as he tried to climb over a fence. Idrovo handcuffed defendant and they returned to the scene of the robbery. During this foot chase, Idrovo saw defendant throw away Sotelo's wallet on the corner of High Street and Second Avenue. Idrovo later directed DeLaPrida to recover the wallet.
While Idrovo chased defendant, DeLaPrida chased and immediately apprehended Figueroa, handcuffed him, and placed him in the officers' vehicle, which DeLaPrida locked, and then gave chase to the other perpetrators. He followed co-defendant Emerson Colorado, one of the two perpetrators who had been assaulting Nunez. Colorado turned into an alleyway between 24 and 26 High Street, jumped several fences, the tried to hide under a tarpaulin covering construction equipment in a construction yard. Additional officers arrived to assist DeLaPrida, and Colorado was dragged out from underneath the tarpaulin and placed under arrest. A search incident to arrest disclosed two $20 bills in his front pocket, the exact sum stolen from Nunez. The fourth perpetrator was never apprehended. DeLaPrida testified, without objection, that he knew defendant and Colorado "from the neighborhood."
At the time of trial, Sotelo was not able to identify either of his assailants. He testified that he and his friend were walking home from a tavern when the perpetrators came up behind them and asked for a light. Sotelo did not turn around, but kept walking and was grabbed from behind by one man while a second man wearing a green jacket stepped in front of him, punched him in the neck, and took his wallet and cell phone from his pants pockets. His wallet contained four credit cards, some money, and his identification. Sotelo could only remember three men involved in the assaults and robberies of him and Nunez, but he acknowledged that he did not "notice very well because the other two guys were on me and moving me around." The men all ran, but one was arrested right away. The other two were not brought back to the scene. Nunez did not testify.
On August 17, 2006, defendant pled guilty to Indictment Number 06-08-1184 charging that on July 1, 2006, he had stolen $250 from Alejandro Vasquez, a third-degree crime, contrary to N.J.S.A. 2C:20-3. At the same time, he also pled guilty to Indictment Number 06-08-1185 charging him with third-degree unlawful possession of a handgun on June 6, 2006. These were his first indictable convictions. He was sentenced on those charges on September 22, 2006, and placed on probation for two years concurrently for both crimes, being sentenced to time served. The judge found aggravating factors three*fn1 and nine*fn2 and no mitigating factors.*fn3
On October 10, 2006, Figueroa pled guilty to second-degree robbery subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and fourth-degree resisting arrest. He testified he was with defendant and Colorado on March 27, 2006, when they saw two slightly intoxicated men, whom they all decided to rob. Figueroa held one of the men and Colorado held the other one while defendant ran through their pockets and took their money by force. Figueroa did not testify at the trial of defendant and Colorado.
Defendant and Colorado were tried from February 27 through March 1, 2007. Defendant was tried in absentia, although he was represented by counsel. The jury found defendant guilty on all counts.
Defendant appeared for sentencing on July 13, 2007. At that time, there were charges of violating his two terms of probation by not reporting, not complying with conditions of probation, and not making payment.*fn4 The judge found defendant guilty of violating these terms of probation. He next considered the robbery conviction. Defendant's counsel requested that the sentences for the probation violations and the robbery run concurrently because, "given the NERA consequences, [defendant's] going to be serving a highly substantial portion of [the robbery] sentence."
The judge considered defendant's prior history, including thirteen juvenile arrests, several adjudications, three adult felony convictions in California, and two adult indictable convictions in New Jersey. The judge found aggravating factors three, six,*fn5 and nine were applicable; no mitigating factors were present; and an obvious need to protect the public existed. The judge then discharged defendant from probation on the July 1, 2006, theft charge and sentenced him to four years flat on the June 6, 2006, weapons offense. For the March 27, 2006, robbery conviction, the judge sentenced defendant to ten years in prison subject to the NERA eighty-five percent parole disqualifier with three years of mandatory parole. The judge made the robbery sentence consecutive to the sentence for the probation violation, "a separate and distinct crime committed on a separate and distinct date." Thus, defendant was given an aggregate sentence of fourteen years in prison. This appeal followed.
Defendant presents the following issues for our consideration:
POINT I - THE TRIAL COURT COMMITTED PLAIN ERROR BY GIVING THE JURY A FLIGHT CHARGE WHEN THE DEFENDANT WAS TRIED IN ABSENTIA AND IDENTIFICATION OF THE DEFENDANT WAS A CENTRAL ISSUE AT TRIAL. (NOT RAISED BELOW) POINT II - TESTIMONY THAT DETECTIVE DeLaPRIDA KNEW THE DEFENDANTS "FROM THE NEIGHBORHOOD" SUBSTANTIALLY PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BECAUSE IT CLEARLY SUGGESTED THAT DEFENDANT HAD A PRIOR CRIMINAL RECORD. (NOT RAISED BELOW)
POINT III - THE PROSECUTOR'S COMMENTS IN SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW) POINT IV - THE SENTENCE TO AN AGGREGATE FOURTEEN (14) YEAR TERM OF IMPRISONMENT WITH ONE-HUNDRED AND TWO (102) MONTHS OF PAROLE INELIGIBLITY IS MANIFESTLY EXCESSIVE AND IS AN ABUSE OF THE COURT'S DISCRETION.
A. The Trial Court's Findings With Regard To The Aggravating And Mitigating Factors Present Cannot Be Supported.
B. The Imposition Of A Consecutive Four Year Term Of Imprisonment On A Violation Of Probation Is Manifestly Excessive And Is An Abuse Of The Court's Discretion.
When we review issues that were not raised before the trial judge, we review those issues under the plain-error standard.
R. 2:10-2. Thus, we will not reverse unless the error is "clearly capable of producing an unjust result." Ibid. More specifically, the "possibility [of injustice] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." ...