October 27, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAMON RAMIREZ, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1284.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2010
Before Judges Reisner and Alvarez.
Tried to a jury, defendant Ramon Ramirez, Jr. was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); first-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count two); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three).*fn1 On April 17, 2009, defendant was sentenced on the first-degree armed robbery to fifteen years subject to eighty-five percent parole ineligibility, in accord with the No Early Release Act, N.J.S.A. 2C:43-7.2. He was also sentenced to ten years imprisonment on the conspiracy and three years on the possession of a weapon for an unlawful purpose. All terms of imprisonment were to be served concurrently. We affirm defendant's convictions without prejudice to his right to pursue ineffective assistance of counsel claims in a petition for post-conviction relief (PCR). We remand for reconsideration of the sentence.
Defendant was approximately seventeen years and eleven months old in the early afternoon of February 11, 2007, when he and his co-defendant, Lawrence Reid, walked into a furniture store in Jersey City, the location of the robbery. Neither was masked, but both wore jumpsuits.
At the trial, the store's owner, Rafeek Gafor, testified that defendant and Reid left the store after he showed them several bedroom sets. When they returned moments later, they asked to see additional items of furniture. Gafor reached towards a sample book, only to find when he turned back that defendant was holding a gun approximately two feet from his face. Defendant began to curse and say over and over, "give me your money." Gafor reached into his pocket and handed over $90 in cash, a receipt bearing the phone number of a sales representative, and his cell phone. Meanwhile, Reid was repeatedly telling defendant to "pop that mother f-----." After the two men ran out of the store, Gafor immediately called the police.
Jersey City Police Sergeant Peter Lagis arrived at the scene within seconds of receiving the radio transmission about the robbery. Gafor described the two assailants to him, including the fact they were wearing jumpsuits. The description was then broadcast over the police radio.
As Vincent Stepnowski, a supervisor for Jersey City Closed Circuit TV (CCTV), testified during the trial, CCTV is a television system with approximately seventy cameras scattered throughout the "urban enterprise zone" in the city. It is designed to monitor suspicious or unusual activities. Stepnowski was working the evening shift on that date and heard the police broadcast, including the description of the suspects, indicating that "a Hispanic male and a black male had left the area of Orient and Kennedy Boulevard and were heading east on Orient Avenue." The CCTV cameras then focused on that area, and the subjects were quickly located on camera. While the CCTV recording was played to the jury, Stepnowski gave an accompanying commentary. He described "a Hispanic male and a black male" seen on tape discarding objects and walking towards a neighborhood convenience store on the southwest corner of Martin Luther King Boulevard and Orient. Also depicted on tape was the arrival of police and the ensuing arrest. Stepnowski identified defendant as one of the suspects captured on film.
Police were directed to the neighborhood store by the CCTV operator, who watched the two men fitting the description of the suspects as they walked down the street. They were immediately taken into custody. Gafor, driven by Lagis to the arrest scene, was able to positively identify both men. Lagis described Gafor's identification, which took place within minutes of the crime, as "quite adamant."
Defendant and Reid were transported to juvenile detention. Meanwhile, Officer Matthew Lowenworth searched the route of travel the men had taken from the furniture store to the convenience store, because he was advised that CCTV had observed them discarding something on the street. Lowenworth's search uncovered two jumpsuits, Gafor's cell phone, and later on, a BB gun.
Jersey City Police Officer Mark Hennessey searched defendant incident to his arrest. Hennessey found $67 in defendant's pocket along with the receipt bearing the sales representative's phone number, taken from Gafor. Defendant then volunteered the location of the BB gun to Hennessey. As Hennessey explained:
Q: . . . What did you hear, what was told to you, sir?
A: Well the officers and there was radio transmissions about the gun not being recovered.
Q: And what happened next?
A: He stated I'll show you where the gun is because it's only a BB gun.
Q: Mr. Ramirez said that?
Q: What happened at that time?
A: I -- he was given his rights, we spoke to Sergeant Lagis who stated that due to the public safety exception we should go back and retrieve the weapon.
Q: And did you do that?
Q: Where was the weapon recovered?
A: It was recovered in the rear of 108 Orient under a rug.
Q: And approximately how far is that from the corner of Orient and MLK where the defendants were apprehended?
A: It's on the opposite side of the street . . . . Pre-trial, defense counsel filed a motion to suppress the BB gun based on alleged improprieties in the taking of defendant's statement. That application was subsequently withdrawn without any explanation for the withdrawal being placed on the record.
We do not have any transcripts of defendant's juvenile proceedings, including the juvenile waiver hearing. We therefore do not know if a contested waiver hearing was conducted pursuant to N.J.S.A. 2A:4A-26. A psychiatric evaluation was prepared on June 12, 2007, in support of defendant's opposition to the motion to waive defendant to adult court.
A copy of this psychiatric report was provided to the State at the juvenile waiver stage, and a copy has been included in defendant's appendix. The report was not moved into evidence before the trial judge at any stage in the proceedings, however, including the sentencing. Other than defense counsel's request that the sentencing court consider defendant's "attention deficit disorder, drug addiction, and emotional issues since he's been a young teenager," no mention appears in the record provided on appeal that defendant suffers from mental health difficulties.
At sentencing, the court found aggravating factors three, the risk defendant will reoffend, N.J.S.A. 2C:44-1(a)(3); six, the extent and "seriousness" of his prior criminal history, N.J.S.A. 2C:44-1(a)(6); nine, the need to deter defendant and others from criminal conduct, N.J.S.A. 2C:44-1(a)(9); and no factors in mitigation. See N.J.S.A. 2C:44-1(b). This despite the fact defendant's only prior offense was a juvenile adjudication for car theft, N.J.S.A. 2C:20-2, and a related credit card theft, N.J.S.A. 2C:21-6, occurring May 1, 2006. On May 14, 2007, while the charges giving rise to this appeal were pending, defendant was placed on juvenile probation for one year.
Defendant's points on appeal are as follows:
POINT I. DEFENDANT WAS DENIED THE EFFECTIVE, UNHINDERED ASSISTANCE OF COUNSEL BY THE FAILURE OF HIS TRIAL COUNSEL TO RAISE THE DIMINISHED CAPACITY DEFENSE THAT WAS APPLICABLE TO THE FACTS OF THE CASE, AND THIS FAILURE SUBSTANTIALLY PREJUDICED HIS DEFENSE
POINT II. THE SENTENCE OF DEFENDANT WAS EXCESSIVE AND UNREASONABLE UNDER THE [EXISTING] CIRCUMSTANCES
Ineffective assistance of counsel claims are routinely raised by way of PCR applications pursuant to Rule 3:22-2 because such claims cannot ordinarily be fairly addressed without the presentation of proofs found outside the trial record. State v. McQuaid, 147 N.J. 464, 484 (1997); State v. Lewis, 389 N.J. Super. 409, 416 (App. Div.), certif. denied, 190 N.J. 393 (2007); State v. Abdullah, 372 N.J. Super. 252, 277 (App. Div. 2004). In order for defendant to present the evidence necessary to pursue the ineffective assistance of counsel he alleges on this direct appeal, based on his counsel's allegedly wrongful withdrawal of the motion to suppress and counsel's allegedly prejudicial failure to raise a diminished capacity defense, he requires additional evidence not available to us, such as the testimony of his trial attorney. See Lewis, supra, 389 N.J. Super. at 416.
In fact, at this stage, consideration of ineffective assistance of counsel issues, and other matters ordinarily addressed by way of PCR, may result in defendant being barred from relitigating these claims in the future, at a time when he may be able to develop a more complete record. See State v. Pagan, 378 N.J. Super. 549, 557 (App. Div. 2005).
Our reluctance to address the ineffective assistance of counsel claims on direct appeal is all the greater as to the diminished capacity defense because it does not appear that the psychiatric evaluation, or any psychiatric testimony at all, was ever actually introduced into evidence. Because it is not properly included in the record, it is not a proper subject of consideration. See R. 2:5-4(a).
We therefore decline to address defendant's ineffective assistance of counsel claims on direct appeal as they "are best left to post-conviction review." See Lewis, supra, 389 N.J. Super. at 416. We make this disposition, of course, without comment as to the ultimate merits of the issues.
The sentencing of defendant is a different matter; he contends his sentence was excessive and unreasonable. He argues it was disproportionate to the sentence imposed on his co-defendant, that the judge sentenced in a vacuum unaware of his psychiatric difficulties, that the sentence was excessive in light of his minimal criminal history, and that it was based on improper considerations, such as his rejection of the State's plea offer and his insistence on proceeding to trial.
We note that the court found aggravating factor six, the extent of defendant's prior criminal history, N.J.S.A. 2C:44-1(a)(6), even though defendant's only prior contacts with the system were juvenile adjudications occurring on the same date for related car theft and credit card offenses, for which he was merely placed on probation. Ordinarily, when reviewing a criminal sentence being "challenged for excessiveness," we only search the record to determine if the sentence was based upon sufficient credible evidence. State v. Bieniek, 200 N.J. 601, 608 (2010) (citing to State v. Roth, 95 N.J. 334, 364-65 (1984)). We do not substitute our judgment for that of the trial court in assessing the propriety of aggravating and mitigating factors. Nonetheless, when we find that an aggravating or a mitigating factor is not supported by the record, we are obliged to "intervene and disturb such a sentence with a remand for resentencing." Ibid. In this instance, we do not think the juvenile adjudications months prior were sufficient evidence to support aggravating factor six.
Furthermore, we have a concern about the judge's separate sentence on the conspiracy and the lack of discussion as to whether merger was appropriate. See N.J.S.A. 2C:1-8(a)(2); State v. Hardison, 99 N.J. 379, 386 (1985).
Accordingly, we remand the matter to the trial court for reconsideration of the sentence because there was no support for aggravating factor six, and for consideration of whether merger is necessary. Such a resentence will afford defendant the opportunity to introduce the 2007 psychiatric evaluation together with any other relevant information in support of his position that a sentence in the low range of the permissible term should be imposed.
Affirmed as to the conviction; remanded for resentencing.