On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-04-0412.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2010 - Decided
Before Judges Lisa, Reisner and Alvarez.
This case arose from a melee at a Paterson high school that spilled out into the adjoining streets and culminated when a group of students beat Hector Robles to death. In connection with those events, defendant was convicted of: second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2; second-degree reckless manslaughter, N.J.S.A. 2C:2C:11-4a; third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2; fourth-degree riot, N.J.S.A. 2C:33-1a(a); and third-degree simple assault, N.J.S.A. 2C:12-1b(1).*fn1
After merging the conspiracy and manslaughter convictions, the trial judge sentenced defendant on December 10, 2004, as follows: ten years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for reckless manslaughter; a consecutive five-year term for endangering an injured victim; and concurrent sentences of eighteen months for riot and six months for assault. Defendant appeals from the conviction and the sentence imposed.
In his appeal, defendant sets forth the following points for our consideration:
POINT I: THE TRIAL COURT ERRED AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS BY PERMITTING BEFORE THE JURY STATEMENTS OBTAINED FROM THE 15-YEAR-OLD JUVENILE WITHOUT THE PRESENCE OF A PARENT OR GUARDIAN.
POINT II: EVEN IF DEFENDANT'S STATEMENTS WERE ADMISSIBLE, THE TRIAL COURT ERRED IN PERMITTING DEFENDANT'S STATEMENTS TO BE BROUGHT INTO THE JURY ROOM DURING DELIBERATIONS WITHOUT CAUTIONARY INSTRUCTIONS.
POINT III: EVEN ASSUMING THAT THERE WAS SUFFICIENT EVIDENCE TO SUSTAIN DEFENDANT'S GUILT FOR RECKLESS MANSLAUGHTER UNDER CO-CONSPIRATOR LIABILITY PRINCIPLES, THE TRIAL COURT'S JURY CHARGE ON VICARIOUS LIABILITY WAS INSUFFICIENT AND IMPROPER, WARRANTING REVERSAL OF DEFENDANT'S RECKLESS MANSLAUGHTER CONVICTION (PLAIN ERROR).
POINT IV: THERE WAS INSUFFICIENT EVIDENCE THAT DEFENDANT COMMITTED RECKLESS MANSLAUGHTER BY HIS OWN CONDUCT (AS A PRINCIPAL), WARRANTING REVERSAL OF HIS RESULTING CONVICTION.
POINT V: THE TRIAL COURT ERRED IN PERMITTING PRIOR BAD CONDUCT BY DEFENDANT AS "MOTIVE" EVIDENCE BEFORE THE JURY.
POINT VI: EVEN IF THE BAD CONDUCT EVIDENCE WAS ADMISSIBLE, THE JURY INSTRUCTION ON HOW TO USE THE EVIDENCE WAS INSUFFICIENT AND PREJUDICIAL (PLAIN ERROR).
POINT VII: DEFENDANT'S SENTENCE IS EXCESSIVE AND IMPROPER.
Finding no merit in points one through six, we affirm the conviction. However, as the State concedes, State v. Natale, 184 N.J. 458 (2005), requires that we remand for re-sentencing pursuant to the principles set forth in that case.
We begin by summarizing the most pertinent trial evidence. According to several witnesses, on June 20, 2001, one of the last days of the school year, a large group of students at John F. Kennedy High School participated in a series of assaults inside the school. According to several witnesses, a group of students gathered near the vending machines on the first floor to play a game of tag. However, before the game started, defendant stated "[f]...k this," and announced that he wanted to "wild out" and beat up "Spanish" kids instead. Following through on his intentions he walked over to a Hispanic student, Alexis Encarnacion, and punched him. Bystanders LaToya Carter*fn2 and Latorra Burroughs were eyewitnesses to this attack. Two participants in the violence, Trayvon McClam and Jawon White, also confirmed defendant's role as the instigator in this incident.
Defendant and another student, Anthony Wheeler, then led a large group up to the second floor of the school, where defendant as well as other students attacked a second Hispanic student. Eyewitness Tiffany Stancel testified that she saw defendant and several others attack this second Hispanic student. McClam testified that defendant punched this "Spanish student" in the face. White confirmed that version. However, at trial the victim, Melvin Morel, only identified a student named "Steve" as having hit him. Other members of the "wilding" mob attacked a Bangladeshi student, although no witness saw defendant hit this student.
According to McClam, defendant and Anthony Wheeler, accompanied by many other students, then ran outside the school because "defendant and Anthony wanted to fight the Spanish kids across the street." Pointing out a student who was talking with two girls across the street, defendant said "let's get him right there." McClam testified that defendant walked up to this victim and punched him in the face, after which Wheeler, McClam and several other students also hit him. Another mob participant, Mark Shivers, corroborated this testimony.
This victim, Samuel Rosario, confirmed at the trial that he was attacked by a group of fifteen to twenty students near the high school. While he was being attacked, he "heard people yelling out stop; calling out . . . guys' names. I heard John, I heard Steve." Rosario's then girlfriend, Trishaun Hamilton, and her sister Trenace both knew defendant. They witnessed the attack and testified that defendant was the first person to hit Rosario. Another member of the "wilding group," Steve Williams, Jr., also testified that he saw defendant hit Rosario.
According to McClam, defendant, Wheeler and Steve Williams encouraged their companions to continue the violence, "[b]ecause they said they wanted . . . to keep doing what they was doing. [They] said they wanted to keep messing people, they want to still beat people up." After defendant, Williams and Wheeler made these statements, several students, but not defendant, attacked a man who was delivering cakes to a small grocery store.*fn3 However, they walked away when the police arrived. Shivers corroborated McClam's version of these events.
According to McClam, the group next encountered a homeless man, Hector Robles, walking near some factories at the corner of Jasper Street and Totowa Avenue.*fn4 McClam testified that "John and Anthony was talking about they wanted to get him. So Anthony ran up towards him and punched him in the face." According to McClam, after Wheeler punched the man, defendant also punched him in the face, and the man fell to the ground. Once he fell, "the whole ...