March 12, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EMERSON B. COLORADO ALSO KNOWN AS COLORANDO E. BALANTA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-07-0691.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 18, 2009
Before Judges Cuff and C.L. Miniman.
A jury found defendant Emerson Colorado guilty of second degree robbery, N.J.S.A. 2C:15-1 (Count 2); third degree resisting arrest, N.J.S.A. 2C:29-2a (Count 3); fourth degree simple assault, 2C:12-1a (Count 4); fourth degree resisting arrest, N.J.S.A. 2C:29-2a (Count 5); and fourth degree obstruction of the administration of law, N.J.S.A. 2C:29-1 (Count 6). On Count 2, defendant was sentenced to a seven-year term of imprisonment with an 85% No Early Release Act (NERA)*fn1
period of parole ineligibility. On Count 3, defendant was sentenced to a five-year term of imprisonment, consecutive to Count 2. Count 4 merged with Count 5 and defendant was sentenced to a five-year term of imprisonment concurrent to Counts 2 and 3. On Count 6, defendant was sentenced to an eighteen-month period of imprisonment concurrent to Counts 2 and 3. The appropriate fees, penalties and assessments were also imposed.
Defendant's conviction arises from a street robbery of two men who had just left a bar. Jose Luis Sotelo, one of the victims, testified that three men approached him and Carlos Nunez. As they drew near, one of the men asked Nunez and him for a lighter. Once they got close, one of the men grabbed Sotelo from behind and another punched him in the neck, searched his pockets, and removed his cell phone and wallet. Sotelo also noticed that a third man pushed Nunez to the ground.
As Sotelo, Nunez and the three men scuffled, two plain clothes Elizabeth police officers, Officers Idrovo and De La Prida, noticed a group of men on the sidewalk. They observed one man restraining another in a "Full Nelson" wrestling position. The officers realized the encounter was more than innocent horseplay when they observed one man punch the restrained man (Sotelo), reach into his pockets and pull out his wallet.
The officers stopped their car and ran towards the scuffle. As they did so, both noticed another man (Nunez) on the ground being attacked by a third man and possibly a fourth man. They identified themselves as police officers by flashing their badges and yelling "stop" and "police." The assailants ran from the scene.
Officer Idrovo chased the man he observed punch Sotelo. As he did so, he saw the man discard the wallet taken from Sotelo. Officer De La Prida later retrieved the wallet. Idrovo caught the man he chased as he attempted to climb a fence. The apprehended man was identified as co-defendant Bruce P. BlancoReyes.
As the men scattered, Officer De La Prida grabbed the man closest to him, placed him under arrest and placed him in the unmarked police car. This man was identified as co-defendant Devonne D. Figueroa. Officer De La Prida testified that Figueroa was the man he observed restrain Sotelo. At trial, the officer also identified Sotelo as the man he observed being restrained by co-defendant Figueroa and punched by co-defendant Blanco-Reyes.
Once he placed Figueroa in the police car, Officer De La Prida chased the man who beat Nunez and took something from him. The assailant led the officer through an alleyway, over several fences, and into a construction yard, where the assailant tried to hide under a tarp. Officer De La Prida called for assistance. Two other officers arrived at the scene and eventually apprehended the assailant. However, in the course of doing so, the man, later identified as defendant, kicked Officer De La Prida and tried to release himself from the grasp of the officers. Once restrained, defendant was searched and $40 was found in a front pocket. Officer De La Prida recognized defendant as the man who had riffled Nunez's pockets and removed money from the wallet and placed it in his pocket.
A fourth suspect was never apprehended. At trial, Officers Idrovo and De La Prida testified that they believed four men were involved in the robbery of Sotelo and Nunez. In his statement to police, however, Sotelo reported that three men approached them, two attacked him and the third man attacked Nunez. Nunez also reported that three men approached them, two men attacked Sotelo, and a third man threw him to the ground and searched his pockets. Nunez was unable to describe the man who assaulted him. Sotelo was able to provide only a general description of the man who punched him and no description of the man who restrained him or the man who assaulted Nunez.
On appeal, defendant raises the following arguments:
THE TRIAL COURT'S REFUSAL TO ALLOW DEFENDANT TO PRESENT THE UNAVAILABLE VICTIM'S STATEMENT TO THE POLICE, WHICH TENDED TO EXCULPATE DEFENDANT, VIOLATED DEFENDANT'S RIGHT TO PRESENT A DEFENSE AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BY A JURY. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 1, 10).
INSUFFICIENT REASONS WERE GIVEN FOR IMPOSING CONSECUTIVE SENTENCES. FURTHERMORE, THE MAXIMUM SENTENCE IMPOSED ON DEFENDANT'S THIRD-DEGREE CONVICTION IS MANIFESTLY EXCESSIVE.
A) The Consecutive Sentence Is Unwarranted.
B) The Sentence Imposed On Defendant's Third-Degree Resisting Arrest Conviction Is Manifestly Excessive.
Nunez did not testify at trial. Defendant sought to introduce Nunez's statement to police in which Nunez reported only three participants in the robbery. Defendant sought to introduce this statement to discredit the State's position that four men participated in the incident. Defendant argued the admission of the statement furthered his defense that he was simply a Good Samaritan who had stumbled on the assault. Defendant recognized that the statement was hearsay. He urged, however, that the statement was admissible as the present sense impression of the victim, or as an excited utterance, or in the interests of justice.
The trial judge held the statement inadmissible. He rejected each of the grounds proffered by defendant. In doing so, he found that Nunez provided the statement approximately a day and a half after the assault and that he did so calmly. Therefore, the statement neither qualified as a present sense impression, N.J.R.E. 803(c)(1), nor exited utterance, N.J.R.E. 803(c)(2). In addition, the trial judge rejected the interests of justice argument advanced by defendant, noting that the Nunez statement was not exculpatory. In fact, it simply questioned whether three or four men were involved in the robbery. Furthermore, this State has expressly rejected the federal "residual hearsay" rule. See Fed. R. Evid. 807.
On appeal, defendant urges that the trial judge should have followed State v. Dudley, 269 N.J. Super. 632 (Law Div. 1993). We disagree.
In Dudley, the trial court examined "the admissibility of the out-of-court statements of an unavailable declarant when the statements do not fall within any of New Jersey's recognized hearsay exceptions." Id. at 633. The defendant was indicted for attempted murder, and evidence presented by his co-defendant and one of the State's witnesses demonstrated that the defendant was indeed the person who had shot the victim. Id. at 634. However, when the victim was shown a photo array two days following the shooting, the victim made a positive identification of the co-defendant as the assailant. Ibid. Moreover, the next day, the victim viewed another photo array with the defendant's picture, and definitively stated that the defendant was not the person who had shot him. Ibid. At trial, the victim was unavailable to testify, but the police statements recounting the photo array sessions were available. Ibid.
The trial court held the victim's statements to the police were inadmissible under the Rules of Evidence, however, the "unavailable victim's exculpatory hearsay statements given to police and carrying indicia of trustworthiness should be admitted into evidence in the interests of justice." Id. at 638. The court reviewed the underlying rationales for the hearsay rule, such as preserving the right to cross-examine the person making a statement, and determined that "the exclusion of hearsay in this case, rather than inclusion, is prejudicial to the defendant." Id. at 635-38. More specifically, the victim's out-of-court statements were necessary to the defense because "it [was] clear that the police reports and transcripts of the victim's statement [were] all that the court [would] have from the unavailable victim." Id. at 636. The statements were clearly exculpatory and thus the court found "special and compelling circumstances" existed to warrant the relaxation of the hearsay rules. Id. at 636-37 (quoting U.S. v. Vigoa, 656 F. Supp. 1499, 1511 (D.N.J. 1987), aff'd, 857 F.2d 1467 (3d Cir. 1988)).
Admittedly, there are circumstances when the Rules of Evidence should be relaxed to allow a defendant to admit otherwise inadmissible hearsay evidence. Dudley, supra, 269 N.J. Super. at 637-38. Cf. State v. Garfole, 76 N.J. 445, 452-53 (1978) (lower standard of degree of similarity of offenses may be required for defensive use of other crimes evidence); Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 802 (2009). This is particularly the case when the rules of evidence do not conform to constitutional requirements. State v. Bunyan, 154 N.J. 261, 266 (1998). The evidence must, however, be exculpatory and must be essential to the defendant's case. See, e.g., Dudley, supra, 269 N.J. Super. at 632. That is not the situation in this case.
Resolution of the dispute concerning the number of assailants does not exculpate defendant. Nunez's statement that three rather than four men participated in the assault does not contradict the officer's testimony that defendant was at the scene and robbed the men. Moreover, the defense presented by defendant was a simple denial of guilt. His purported Good Samaritan defense consisted of nothing more than comment by defense counsel during opening and closing statements. We hold, therefore, that the trial judge properly held that the statement provided by the other victim was not admissible at trial.
Defendant also argues that the aggregate twelve-year term with a five-year, eleven-month, twelve-day period of parole ineligibility is manifestly excessive. Specifically, he contends that the judge erred in imposing a five-year term of imprisonment for third degree resisting arrest and should not have made this sentence consecutive to the seven-year term for second degree robbery.*fn2 We disagree.
This court has the authority and the obligation to review a sentence. Our review, however, is not plenary. Instead, if the sentence imposed comports with the law, the judge expresses the reasons for the sentence or the reasons are readily discernible from the record, the aggravating and mitigating factors found by the judge are supported by the record, and the sentence does not otherwise shock the judicial conscience, we must affirm. State v. Roth, 95 N.J. 334, 364-66 (1984).
Recently, in State v. Bieniek, ___ N.J. ___ (2010), the Supreme Court restated the standard of appellate review of sentences as follows:
The reviewing court is expected to assess the aggravating and mitigating factors to determine whether they "were based upon competent credible evidence in the record." Roth, supra, 95 N.J. at 364-65. An appellate court is not to substitute its assessment of aggravating and mitigating factors for that of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989). However, when an appellate court determines that the trial court has found aggravating and mitigating factors unsupported by the record, the appellate court can intervene and disturb such a sentence with a remand for resentencing. State v. Carey, 168 N.J. 413, 430 (2001) (citing Roth, supra, 95 N.J. at 365-66); see also Roth, supra, 95 N.J. at 364-65 (condoning remand or outright reversal when trial court's sentence "shocks the judicial conscience"). We also have held that a remand may be required when a reviewing court determines that a sentencing court failed to find mitigating factors that clearly were supported by the record. State v. Dalziel, 182 N.J. 494, 505 (2005) (concluding that aggravating and mitigating factors supported by record "must be a part of the deliberative process"). Our decisions do not require, however, that the trial court explicitly reject each and every mitigating factor argued by a defendant.
See State v. Pillot, 115 N.J. 558, 565-66 (1989) (determining that although trial judge's statement of reasons for imposing sentence could have been clearer, it was "possible in the context of this record to extrapolate without great difficulty the court's reasoning"). It is sufficient that the trial court provides reasons for imposing its sentence that reveal the court's consideration of all applicable mitigating factors in reaching its sentencing decision. See ibid. [Id. at 8-9.]
Moreover, in the face of a silent record, an appellate panel should refrain from a remand, if the panel is able to discern from the entire record the reasons for rejecting mitigating factors. Id. at 9.
Here, the judge cited two aggravating factors: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). Although the judge did not explicitly state the reasons for citing the need to deter defendant and others, our review of the record in its entirety readily reveals the basis for this finding.
The pre-sentence report reveals that defendant had a prior criminal record. In 2002, he had been charged with burglary and criminal trespass and had been accepted in the pre-trial intervention program. Soon thereafter, however, he was terminated from the program and was under probation supervision at the time of his arrest. Moreover, the record reveals that defendant had attended three years of college in South America and had been trained in areas that should have offered him opportunities for employment. His prior record and his skills strongly suggested that defendant needed a powerful sanction to influence his future behavior.
We are also satisfied that the judge did not err when he ordered the term for resisting arrest consecutive to the robbery term. Although the judge's statement of reasons was not extensive, he clearly expressed the reasons for this sentence. He noted that the resisting arrest charge was a separate indictable offense and that "there is no reason for somebody to resist arrest." These reasons comport with State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), and we discern no reason to intervene.