On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-01299.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Gilroy.
On December 1, 2005, a Union County Grand Jury charged defendant Maria I. Duran, along with co-defendants Yamilet Duran, her daughter; and Zoila Morales, with second-degree aggravated assault by causing serious bodily injury to another, N.J.S.A. 2C:12-1b(1) (count one); third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and fourth-degree unlawful possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d (count three).*fn1
Prior to trial, Yamilet Duran and Morales filed motions seeking to sever their trial from defendant's trial. Although defendant had not filed a similar motion, her counsel advised the trial court that defendant intended to introduce evidence of the victim Carolina Rodriguez's belief that Yamilet Duran and Morales were members of the MS-13 street gang*fn2 to explain why Rodriguez would have falsely accused defendant, rather than defendant's daughter Yamilet, of assaulting her with a knife. Following an N.J.R.E. 104 hearing, the court barred defendant from presenting evidence that Rodriguez was afraid of Yamilet Duran and Morales because of their affiliation with the MS-13 street gang. With the court so ruling, defendant joined co-defendants' motion to sever. The court denied the motion.
A jury found defendant guilty of all charges. The same jury found Yamilet Duran and Morales guilty of third-degree aggravated assault by causing significant bodily injury to another, as a lesser-included offense of count one, and acquitted them of counts two and three.
On September 29, 2006, after finding that aggravating sentencing factors N.J.S.A. 2C:44-1a(2), (3), and (9) outweighed mitigating sentencing factor N.J.S.A. 2C:44-1b(7), the court sentenced defendant on count one to a five-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to three years of parole supervision upon release. The court merged the convictions on counts two and three with the conviction on count one. The court also imposed all appropriate fines and penalties.
On appeal, defendant argues:
THE COURT VIOLATED APPELLANT'S CONFRONTATION RIGHTS WHEN IT EXCLUDED FROM THE TRIAL ALL CROSS-EXAMINATION AND ALL EVIDENCE REGARDING VICTIM CAROLINA RODRIGUEZ'S BELIEF IN THE MS-13 GANG MEMBERSHIP OF YAMILET AND ZOILA MORALES AND HER FURTHER UNDERSTANDING THAT MS-13 PRACTICED EXTREME AND VIOLENT RETALIATION AGAINST PERSONS WHO WOULD TESTIFY AGAINST GANG MEMBERS.
A. THE COURT DEPRIVED [DEFENDANT] OF HER SIXTH AMENDMENT RIGHT TO CONFRONTATION WHEN IT PROHIBITED COUNSEL FROM CROSS-EXAMINING CAROLINA RODRIGUEZ AS TO HER POSSIBLE MOTIVE TO FABRICATE IN HER IDENTIFICATION OF MARIA DURAN AS THE SLASHER; THE MOTIVE TO FABRICATE WAS CAROLINA RODRIGUEZ'S FEAR OF THE MS-13 GANG.
B. THE CONFRONTATION CLAUSE VIOLATION WAS NOT HARMLESS ERROR.
C. THE COURT ERRED IN DENYING SEVERANCE.
THE COURT ERRED IN PERMITTING THE PROSECUTION TO PRESENT LAY OPINION TESTIMONY CONCERNING A SO-CALLED STAIN ON THE KNIFE, WHICH THE POLICE ...