April 28, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANNY LAZO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-03-0903; 06-08-2711.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 24, 2010
Before Judges Cuff and Payne.
A jury found defendant guilty of third degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 2C:15-1 (Count One); and second degree robbery,*fn1 N.J.S.A. 2C:15-1 (Count Two) on Indictment No. 06-03-0903. Following the jury verdict, defendant pled guilty to first degree robbery, N.J.S.A. 2C:15-1, under Indictment No. 06-08-2711. After merging Count One with Count Two of Indictment No. 06-03-0903, defendant was sentenced to a seven-year term of imprisonment with an 85% No Early Release Act (NERA)*fn2 period of parole ineligibility, and a concurrent five-year term of imprisonment subject to NERA on the first degree robbery charge of Indictment No. 06-08-2711. The appropriate fees, fines, assessments and penalties were also imposed.
At 5:50 a.m. on August 5, 2005, Angel*fn3 Chalco left his home in Newark and headed toward the nearby Bloomfield Avenue subway station to catch the 6:00 or 6:10 a.m. train to work. He arrived in the area at 6:05 a.m. or 6:10 a.m. As Chalco entered the train station, he saw three men walking behind him. Seconds later, while walking down the stairs, the men grabbed Chalco's neck from behind, pulled him back, and demanded his money. One of the three men, identified by Chalco as defendant, moved in front of him with a knife.
Chalco stated defendant touched his chest and stomach with the knife, while the other men held him from behind and took approximately $200 from his pocket and his cell phone. After taking his money, the men kicked Chalco's head and stomach, causing him to lose consciousness and fall to the ground. When he regained consciousness, Chalco returned to his home where he washed himself, took a drink of water and called the police.
At 6:50 a.m. on August 5, Detective Miguel Valido of the New Jersey Transit Police Department received notice of a robbery in the area of the Bloomfield Avenue subway station. Upon arrival, Detective Valido observed Chalco speaking to New Jersey Transit officers on the scene. Valido noticed Chalco was talking "nervously" and "quickly," and had some cuts and bruises about his eyes and on his face.
Chalco, who spoke Spanish, described the suspect as Hispanic, approximately eighteen to twenty-five years of age, five feet nine inches tall and 150 pounds. He also stated the suspect had a fair complexion and wore a white t-shirt, blue jeans, and a baseball cap turned backwards. Chalco was unable to identify the remaining two men involved in the robbery because he never saw them. Chalco refused medical attention.
Later, Chalco was transported to police headquarters where he viewed, via computer, approximately thirty photographs of young men who fit his assailant's description. Chalco did not identify anyone at that time.
During the course of showing the photographs, Detective Valido received information that the police had detained an individual who fit the description provided by Chalco. Sometime after 9:00 a.m., detectives transported Chalco to the area of the Broad Street Station in Newark, where police conducted a show-up. Chalco was unable to make an identification. At the time, he was approximately thirty to thirty-five feet from the suspect.
Chalco was then transported to Newark Penn Station, where he viewed the suspect in a processing room through a one-way window. Standing approximately ten feet away from the suspect, Chalco immediately stated the suspect was not involved in the robbery.
On August 5, 2004, approximately ninety minutes following the robbery, the victim worked with an artist from the New Jersey State Police Composite Drawing Unit to complete a sketch of the robber. When Chalco viewed the finished product, he stated he was "sure" the sketch resembled the individual who assaulted and robbed him. Chalco was never given a copy of the completed composite sketch, but a copy of the sketch was disseminated to all New Jersey Transit patrol commands.
On August 9, 2005, Detective Valido compiled a photo array of six pictures from the New York/New Jersey High Intensity Drug Trafficking Agency Network. Using the description provided by Chalco, Detective Valido chose individuals of similar race, height and weight. He included defendant's picture in the photo array because he fit the description provided by the victim, and closely resembled the police composite sketch.
Detective Valido contacted the victim, and showed him the photographs at the victim's home on the morning of August 10, 2005. After reviewing the photo array, the victim chose photograph number four, defendant's photo. The victim signed the photo he chose, and initialed all remaining photographs. Later that afternoon, Detective Valido picked up the victim and transported him to the New Jersey Transit detective bureau where Valido recorded his statement.
Thereafter, Detective Valido obtained a warrant for defendant's arrest. Defendant was arrested at his home on August 11, 2005. The police never recovered the victim's cell phone or the weapon used by defendant on August 5.
Defendant did not testify at trial. His mother and his brothers Jovanni Lazo and Eric Santiago testified on his behalf at trial. Eric Santiago's friend, Angel Febus, also testified.
Defendant's mother testified that she lived with defendant and her son Jovanni in Newark. Defendant's other brother, Eric Santiago, resided with his father, but lived with his mother on weekends. At trial, all four defense witnesses testified they clearly remembered the events of August 5, 2005, because defendant did not have to go to summer school that day. Consequently, defendant's mother allowed Angel Febus to sleep over on August 4, 2005. Jovanni testified this was noteworthy because no one had ever slept at his home prior to or after August 5, 2005. He further stated Febus was the only person who has ever been allowed to sleep at his home.
They also testified that on August 4, 2005, defendant, Eric, Jovanni and Febus stayed up late playing video games. Although defendant, Eric and Febus went to bed sometime between 2:00 or 3:00 a.m., Jovanni testified he continued playing until 4:00 or 5:00 a.m. All four boys slept in one bedroom and shared two twin bunk beds. Defendant shared the top twin bed with Febus, Jovanni slept in the bottom twin bed with Eric.
Approximately one-half hour after Jovanni went to bed, defendant's mother arose at 5:30 a.m., even though she was not scheduled to work that day. She dressed and entered her sons' bedroom because she wanted to use a full-length mirror in the room. Upon entering the room, she turned on the light, causing Febus to wake up. Febus asked her for the time, to which she responded 6:00 a.m. She checked herself in the mirror for approximately five minutes, kissed each of her three sons goodbye, and subsequently left her home at 6:30 a.m. to attend a "church function."
At 10:20 a.m., defendant's mother testified she returned home to drop off groceries, and defendant was home. Jovanni, Eric and Febus awakened sometime between 11:00 a.m. and noon. All three testified defendant was home at that time. At 3:00 p.m., defendant called his mother from Febus's cell phone and told her they were leaving home to play football with friends.
The unique nature of the sleepover was soundly undermined on cross-examination. Febus testified that defendant's mother treated him as a member of the family and he slept over five to ten times before August 5, 2005. Eric testified that although Angel was the only friend his mother had allowed to sleep over, she had permitted other family members to sleep at the house.
On appeal, defendant raises the following arguments:
I. PROSECUTOR'S REPEATED REMARKS DURING SUMMATION IMPLYING THAT THE DEFENSE HAD FABRICATED AN ALIBI TOGETHER WITH THE TRIAL COURT'S FAILURE TO ISSUE A CURATIVE INSTRUCTION CONSTITUTED PLAIN ERROR (Not Raised Below).
II. THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING [A] PRIOR ARREST PHOTOGRAPH AND TESTIMONY FROM [A] NON-EYEWITNESS POLICE OFFICER THAT [THE] COMPOSITE SKETCH RESEMBLED DEFENDANT (Raised Below).
III. THE SENTENCING IS MANIFESTLY EXCESSIVE.
a. THE SENTENCING COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
Defendant argues that he is entitled to a new trial because the prosecutor implied that defense counsel fabricated an alibi, and the judge failed to issue a curative instruction to address the prejudice caused by the remarks. This argument focuses on the use of the word "convenient" throughout the prosecutor's discussion of defendant's alibi.
Initially, we note that defense counsel lodged not a single objection during or after the prosecutor's summation. We, therefore, must apply the plain error standard. R. 2:10-2; State v. Bradshaw, 195 N.J. 493, 509 (2008); State v. Macon, 57 N.J. 325, 333 (1971). That is, defendant must establish that the error raised for the first time on appeal is of such a magnitude that it was "clearly capable of producing an unjust result." R. 2:10-2. If there is a "'reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits,'" a new trial must be ordered. Bradshaw, supra, 195 N.J. at 509 (quoting Macon, supra, 57 N.J. at 338). Defendant has not carried that burden.
Defendant's argument focuses on the use of the word "convenient" by the prosecutor during her comments on the alibi advanced by defendant. According to defense witnesses, defendant was asleep in his home during the early morning hours of August 5, 2005. Styling these witnesses as "witnesses of convenience," the prosecutor argued to the jury:
Let's talk briefly about the defense. Let's talk briefly about how convenient the defense witnesses testimony was. How convenient is it that Ms. Rosado, Danny Lazo's mom, didn't have to go work that day? That particular day, and every Friday, she didn't have to work. That's convenient. How convenient is it that summer school ended? And Mr. Lazo didn't have to go to summer school those last two days. How convenient is that? How about mom kisses her three sons, who by the way, ages 20, 19, and 16, who conveniently sleep in bunk beds together in the same room. She kisses them goodbye every morning. How convenient is that? She got up at 5:30, conveniently needed to use the mirror, as she does every morning, in a room where Danny Lazo was asleep. Stood in front of the mirror for five to seven minutes. Five to seven minutes. If the Judge would allow me, and I am sure he wouldn't, I would stand here and show you how long five minutes really is. It's a woman thing she said. I was fixing my hair. We have wom[e]n here on the jury. Five minutes in front of a mirror in the morning? Five whole minutes. And then kiss the three boys, aged 20, 19, and 17 goodbye for the day. Very convenient.
How about everybody remembers this day because it was Danny Lazo's day of freedom? The day he didn't have to go to summer school anymore. They remember that day.
Conveniently, they don't remember the first day. It was July some time we think. We're not sure. We don't know. That's convenient though, we do remember the last day. And how convenient that Angel Febus was sleeping over that day.
Well, ladies and gentlemen, you've heard a lot of testimony. No one ever slept over at this house. That was the rule. And mom says, ever, real clear about that. I asked her about four different ways, if you'll recall. Ever? Never. Ever? No one ever slept over. But on August 5th, 2005, Mr. Febus slept over. Again convenient.
You'll recall Mr. Santiago, Eric Santiago, the defendant's youngest brother. He was convenient, too. He remembered the arrest day, August 11th -- I'm sorry -- he remembered August 5th, the day of the robbery. He remembered that, where everybody was sleeping, and what everybody was doing, and what time everybody went to bed, conveniently. But he didn't remember August 11th the day of the arrest, where he was. August 11th is after August 5th. And he said to me, it was more than a year ago. My memory, you know, I don't remember that well. Okay. It was a year ago, it was a year and a half ago. That makes sense. August 11th comes after August 5th. You remember August 5th, but you can't remember August 11th? [Emphasis added.]
Defendant contends that this portion of the summation denigrated the defense and accused him of fabricating an alibi.
This court has previously admonished prosecutors for explicitly or implicitly stating that an alibi has been invented or concocted by defense witnesses and defense counsel. State v. Munoz, 340 N.J. Super. 204, 217-18 (App. Div.), certif. denied sub nom. State v. Pantoja, 169 N.J. 610 (2001). It is not, however, improper for a prosecutor to comment on the credibility of witnesses presented by the defense. Id. at 218.
The highlighted comments, viewed in isolation and in context, are readily distinguishable from the facts in Munoz. The prosecutor made no reference to defense counsel. This portion of the summation focused on the credibility of defense witnesses. The prosecutor had ably demonstrated during her cross-examination of defense witnesses that there was nothing unusual about the night of August 4 and early morning of August 5, 2005. Febus had slept overnight on prior occasions, and defendant's youngest brother testified that overnight guests were not an exceptional event in his household. We find no error much less plain error.
Defendant's arguments that the trial judge should not have admitted a prior arrest photo and testimony from a police officer that the sketch looked remarkably like defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also discern no basis to disturb the sentence imposed. State v. Roth, 95 N.J. 334, 364-66 (1984). We note, however, that the judgment of conviction provides that defendant has been convicted of a first degree offense. Indictment 06-03-0903 charged defendant with third degree conspiracy to commit robbery and first degree robbery. A jury found defendant guilty of third degree conspiracy to commit robbery and second degree robbery. The judgment of conviction for Indictment 06-03-0903 must be amended to reflect the verdict.
Affirmed; remanded for entry of an amended judgment of conviction.