On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-03-0179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2010
Before Judges Fuentes, Gilroy and Ashrafi.
Defendant Angel Vargas appeals from his conviction and sentence after trial by jury on charges of armed robbery, conspiracy, and aggravated assault. We affirm.
On September 10, 2006, at about 1:00 a.m., Ana Rodriguez, Martin Cortez, and Hugo Narvaez were outside the Chestnut Square Apartments in Vineland. Rodriguez had just returned from a party and was intoxicated. She heard a man say in Spanish to Cortez: "Give me the money." She then heard Cortez say he had only fifteen dollars. Rodriguez heard shouting and Cortez asking for help. She believed she saw two men confront Cortez but could not identify them or tell who injured Cortez. She did not see a stabbing but saw that Cortez was bleeding. Someone called for an ambulance.
When emergency medical technician (EMT) Dan Opperman arrived, he saw two injured men and called for a second ambulance. Near the doorway of an apartment, Opperman observed one man, later identified as Narvaez, who "looked like he was in pain, and he was bleeding from his abdomen and his chest." The second man, Cortez, was lying on a bed inside the apartment, and he was also "bleeding from his chest and abdomen." Opperman treated Cortez, and his partner treated Narvaez until the second ambulance arrived. Cortez had stable vital signs, but Opperman assessed his condition as life threatening because of stab wounds to his chest and the possibility of injury to his lungs. Opperman called for Cortez to be air-lifted to a hospital because of the severity of his injuries.
Another EMT, Richard Jacobsen, arrived in a second ambulance and took over treatment of Narvaez. Jacobsen noticed that Narvaez had three bleeding stab wounds to his chest. Narvaez's vital signs were stable, but he had elevated blood pressure. He was also transported by helicopter to a trauma center because of his injuries.
Dr. Larsola Sjoholm, a surgeon specializing in trauma and critical care, testified that he treated Cortez at Cooper University Hospital for stab wounds to his left flank. Cortez was conscious and had good blood pressure. A CAT scan was performed, after which Dr. Sjoholm decided that Cortez needed surgery because of a possible perforated bowel, an injury that could be life-threatening. During surgery, Dr. Sjoholm observed that Cortez's large and small bowels had several puncture wounds, which the doctor treated. Eventually, Cortez recovered from surgery without incident.
Another trauma surgeon, Dr. Alexander Axelrad, treated Narvaez at Cooper University Hospital. When Narvaez first arrived, Dr. Axelrad observed multiple stab wounds to his chest and upper abdomen. After assessing the patient, Dr. Axelrad decided to take Narvaez to the operating room because of the location of the stab wounds and the possibility that Narvaez had internal injuries. During surgery, Dr. Axelrad found extensive injuries to the spleen, liver, and mesentery, a vessel that supplies blood to the intestines.
Dr. Axelrad and his assisting surgeons removed Narvaez's spleen, repaired his liver, and controlled the bleeding in his abdominal cavity. Narveaz underwent another surgery the following day, during which the doctors stabilized him and eventually closed his abdomen. The doctors also removed one-third of Narvaez's pancreas. After the second surgery, Narvaez remained in the intensive care unit for several weeks because of complications; he was on a ventilator and in a medically-induced coma for a period of time. The doctor explained that Narvaez's injuries were life-threatening.
Edwin Ramos, a Vineland Police detective, investigated the stabbings at the Chestnut Square Apartments. Ramos interviewed several witnesses and took their statements. One of the witnesses later examined a photographic lineup and identified defendant Vargas as the person he had seen sitting on the steps that night when he dropped off Ana Rodriguez from a party.
Nine days after the incident, on September 19, 2006, defendant and Josue Olivo were arrested for the crimes. Detective Ramos advised defendant of his Miranda rights,*fn1 which defendant eventually waived. In statements to the police, defendant first denied that he was at the scene of the crimes. He later admitted he was at the scene, but he said that Olivo was the person who stabbed the victims and not him. Defendant said he acted as the lookout while Olivo "went around and stab[bed] the Mexican, one Mexican right next to each other and another one right next to the van" with a big kitchen knife. Defendant said he told Olivo to stop stabbing the men and to leave. He and Olivo then walked back to defendant's house. According to defendant, Olivo got thirteen dollars from the victims and used it to buy crack cocaine. Defendant said he did not receive any money taken from the robbery.
A grand jury returned an indictment charging defendant and Olivo in eleven counts: two counts of first-degree attempted murder, N.J.S.A. 2C:5-1a(3) and N.J.S.A. 2C:11-3a(1); two counts of first-degree armed robbery, N.J.S.A. 2C:15-1a and N.J.S.A. 2C:15-1b; third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d; second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1a(1) and N.J.S.A. 2C:5-2; fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d; two counts of second-degree aggravated assault in causing serious bodily injury, N.J.S.A. 2C:12-1b(1); and two counts of third-degree aggravated assault in causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1b(2). Olivo entered into a plea agreement with the State and pleaded guilty to a second-degree charge of aggravated assault.
At defendant's trial, the State did not call either Cortez or Narvaez as witnesses, reporting to the trial judge that they were believed to be illegal immigrants and could not be found at the time of trial. Other witnesses were called and testified as summarized here. At the conclusion of the State's case-in-chief, the court dismissed the two counts of attempted murder and the two weapons counts.
Defendant elected to testify and was the only witness for the defense. He said that on the night of the incident, at the Chestnut Square Apartments, Olivo asked defendant if he had any money. Defendant said he did not. Defendant believed Olivo was high on crack cocaine. Two Mexican men were in the area, one by the steps of the apartment building and another in a van. Defendant testified that:
[Olivo] said he -- he watching the Mexicans, that [Olivo] asked me if I can be the lookout, and I think about it, and I see the knife on his pocket, and he has -- if I would have told him not to do it, he probably would have stabbed me, like he did the other victims. So, I choose -- I say, "I be the lookout, but I don't do nothing." That's when I said that, and I sit on the steps.
Defendant testified that Olivo approached the man on the steps and said "Give me your money." The man said he did not have any money. Olivo then "start[ed] stabbing him." Defendant claimed he attempted to stop Olivo, but Olivo went to the van, pulled out the second man, and started stabbing him also. The second man exclaimed: "I ain't got no money, and I got kids. Please don't kill me." After the stabbings, Olivo and defendant walked to defendant's house. According to defendant, he did not receive anything from Olivo after the stabbings. On cross-examination, defendant testified that he had no choice but to participate as a lookout because he feared for his life, having seen that Olivo had a knife.
At the end of both sides' presentation of evidence, defendant moved for a directed verdict, which the trial judge denied. The jury found defendant guilty of two counts of first-degree armed robbery, second-degree conspiracy to commit robbery, second-degree aggravated assault by causing serious bodily injury to Narvaez, a lesser-included offense of third-degree aggravated assault by causing significant bodily injury to Cortez, and two counts of third-degree aggravated assault with a deadly weapon. Defendant moved for a new trial under Rule 3:20-1. The trial court denied the motion.
At defendant's sentencing, the court merged the conspiracy and aggravated assault convictions with the two counts of first-degree robbery. The court sentenced defendant to concurrent terms of fifteen years on each of the robbery counts, eighty-five percent of the sentence to be served before eligibility for parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was also sentenced to five years of parole supervision upon release from prison and statutory penalties and fees.
On appeal, defendant raises the following arguments*fn2
DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO LOWER COURT'S FAILURE TO PRECLUDE EXPERT TESTIMONY CONCERNING MEDICAL TREATMENT OF THE VICTIM.
THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT HAD TO PREPARE A SUMMARY OF PROPOSED TESTIMONY OF A DEFENSE WITNESS, CO-DEFENDANT JOSUE OLIVO, ...