On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-08-0685.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2010 - Decided Before Judges Yannotti and Espinosa.
Defendant appeals from his convictions and sentence for conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, and theft from a person, N.J.S.A. 2C:20-2(b)(2)(d). We affirm.
On the evening of April 27, 2005, Honorio Delgado was walking to a train station in North Plainfield. He intended to take the 9:30 or 9:36 p.m. train. Approximately three blocks from the station, two black males accosted him. The bigger male, who was wearing a ski mask, grabbed his cell phone. The second male, who was "very skinny," then took the phone from the bigger male.
Evidence was introduced at trial that, in May 2005, defendant was five feet, eleven inches tall, had a medium, stocky build, and weighed one hundred ninety pounds. The juvenile charged with him in these assaults, B.W., was approximately five feet, six inches tall, had a small, thin build, and weighed one hundred forty pounds.
Delgado, who was over sixty years old, tried to defend himself. The bigger male pushed him, causing Delgado to stumble backwards, and when Delgado attempted to retrieve his phone a second time, the bigger male showed him something pistol-like in his belt. The bigger male then reached into Delgado's pocket and took his insurance cards and money. The two males then rode away on their bicycles.
Delgado reported the incident on the following morning. Although he did not see his attacker's face, Delgado said at trial that he recognized defendant "[b]y the body."
At approximately 9:30 p.m. on that same evening, Maximo Castro was walking home to his son's apartment from his daughter-in-law's restaurant in Plainfield. Castro, who was also over sixty years old, was carrying a pineapple.
Officer Enrico Perrone, who was working undercover for the Somerset County Prosecutor's Office Narcotics Task Force in an unrelated investigation, was patrolling the area in an unmarked car driven by Sergeant Federico. Officer Perrone observed defendant standing over Castro, who was on the ground on hands and knees. Defendant was holding Castro's left arm and appeared to be trying to help him up. Officer Perrone also observed B.W., sitting on a bicycle, and saw a pineapple rolling on the street.
At the approach of the unmarked vehicle, defendant and B.W. rode away but they returned when Perrone yelled out to them. Perrone asked what was wrong with Castro. Defendant replied that he thought Castro was drunk and that he and B.W. had been trying to help him up. Castro got up and began speaking in slurred Spanish. As Perrone turned his attention to Castro, defendant and B.W. rode away. Castro was very disoriented but did not smell of alcohol and did not show any obvious signs of injury. Although Castro was very disoriented, police questioned him and he stated that he had been attacked by three or four "black guys." The police then transported Castro to a hospital for treatment.
At approximately 9:42 p.m. that evening, Perrone called Sergeant William Speck, who was familiar with defendant. Speck called defendant, who essentially repeated what he had told Perrone at the scene.
Two days later, Lieutenant Gerard Clyne of the North Plainfield police department observed defendant and other juveniles standing near a school, holding beer cans. He detained the juveniles. A search of the area produced a "cylindrical wooden object like a club or bat," that was preserved as evidence possibly relevant to another, unrelated investigation.
On May 9, 2005, defendant met Speck to give a taped statement of the account he had given on April 27.
Speck went to defendant's home with another officer on May
18. A Spanish-speaking officer, Detective Alejandro Kuga, called defendant's mother, Ludvina Jimenez, so that the officers could question defendant. They drove defendant to the police station, where they waited in an interview room for Jimenez. Upon her arrival, Kuga told her that they wanted to talk to her son about an assault and that someone was in the hospital. In her presence, Miranda*fn1 warnings were read to defendant from a form that listed the warnings in both English and Spanish. After each right was read, defendant and Jimenez confirmed their understanding verbally and by initialing the form. Defendant and Jimenez signed the Miranda waiver form at 6:45 p.m.
Speck began to question defendant and Kuga translated the conversation to Jimenez. Defendant initially denied any involvement in the incident with Castro but then became upset and asked if his mother could leave the room. Kuga advised Jimenez that she had a right to remain in the room and that if she chose to leave, she would have to sign a parental waiver form, which he read and translated to defendant and Jimenez. Both signed the form. Kuga and Jimenez then waited in a nearby room for approximately thirty to forty-five minutes.
As defendant and Speck discussed the Castro incident, defendant began to cry. He told Speck that he and B.W. had ridden by Castro on their bicycles and that once they got close to him, defendant struck him once "in the head with a club or a bat that he kept in the sleeve of his jacket. . . ." When Speck asked him why he had struck Castro, defendant stated that "he had done it once before to someone else using a hammer and that [B.W.] didn't believe him." He stated that B.W. dared him to hit someone again. Speck showed defendant a picture of the bat recovered by the police at the school on April 29. Defendant stated that his friend, Tenzin Baro, had given him the bat and that he had used it to strike Castro in the head.
Defendant also told Speck that, shortly before the incident with Castro, he and B.W. had approached a man talking on his cell phone. B.W. pretended that he had a gun under his shirt to frighten the man and took the cell phone from the man while he was talking on it.
Speck asked defendant to repeat what he had said in a taped statement. Speck confirmed on the record that defendant and Jimenez had been advised and understood their rights. Defendant repeated his admissions in the taped statement, which was taken at 8:18 p.m. and lasted eighteen minutes.
On the following day, B.W. also identified the photo of the bat as the weapon defendant had used to strike Castro.
Although Castro had appeared to be recovering from his injury, he died on May 29, 2005. The cause of death reported by the medical examiner was blood clots that developed as complications of the blunt force injuries to his head.
B.W. testified at trial pursuant to a plea agreement. He stated that he was thirteen years old on April 27. After fighting with his stepfather that evening, he told defendant that he needed money because he needed somewhere to live. He testified that defendant responded, "Let's make some robberies." B.W. stated that they then rode around on their bicycles to "scare people to get money." When they saw Delgado, they rode their bikes up to him and defendant asked him for money. Delgado stated that he had none. According to B.W., defendant then snatched Delgado's cell phone and gave it to him. Delgado ran away and they got back on their bikes and rode off.
B.W. testified that they subsequently encountered Castro. B.W. asked defendant if they were going to get him and defendant responded in the affirmative. According to B.W., defendant asked Castro for five dollars. Castro said he had no money. Defendant slipped a bat halfway out of his sleeve. Castro then gave B.W. five dollars. It looked as though Castro had more money and defendant made an effort to get more. Castro tried to run away but defendant grabbed him by his shirt and hit him three times in the head with the bat.
Tenzin Baro testified that he had given defendant a small wooden bat, which defendant often kept hidden in his sleeve. Baro also testified that on April 28, 2005, defendant told him that he and B.W. had hit an "old guy" over the head with the bat on the previous evening after asking him for money.
Defendant testified at trial and disavowed the account he gave in the May 18 statement. He stated that Speck forced him to give that account and that the details had been manufactured by the police.
Defendant stated that on the evening of April 27, he was with several friends, including B.W. and Noel Pyne, who he described as a lieutenant in the Bloods gang. Defendant and B.W. were riding their bicycles and Pyne was standing on pegs attached to B.W.'s bicycle. He said that after he failed to steal a hat at Pyne's instruction, B.W. and Pyne derided him. They then came across Delgado and, when either B.W. or Pyne directed him to take Delgado's cell phone, he complied because he felt that he had to prove that he was "no punk." Defendant stated that he refused Pyne's direction to tell Delgado to give them more money and rode away. He said that Pyne was wearing a mask but that he did not see Pyne or B.W. with any weapons.
Defendant then stated that when they came across Castro, B.W. asked Pyne if he was going to "get him." According to defendant, Pyne stated that he was "going to teach [defendant] how it's done." Defendant stated that Pyne followed Castro until they neared a driveway and then hit him with a black handled silver hammer. Castro fell, and when he tried to get up, Pyne hit him a second time. Pyne fled the scene when an unknown male driving a white car stopped and got out of his car.
Defendant testified that he never intended to rob or hit Castro, that he never agreed to such an arrangement with B.W. or Pyne and that, after Pyne fled, he felt sorry for Castro and tried to help him until the police arrived. Defendant denied discussing the incident with Baro. However, he admitted bragging about it to two friends because "kids in the street" praised it and thought it was "cool." He also admitted having a bat which he discarded when the police observed him and his friends drinking near the school, but denied having the bat with him on April 27.
On May 19, 2005, defendant was charged as a juvenile with acts which, if committed by an adult, would have constituted offenses enumerated in N.J.S.A. 2A:4A-26a(2)(a). Following a juvenile waiver hearing, the Family Part referred the matter to the Criminal Part. Defendant was indicted for knowingly or purposely causing the death of Maximo Castro, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); causing the death of Castro during the commission or attempted commission of a robbery, N.J.S.A. 2C:11-3(a)(3) (count two); the robbery of Castro with the aid of a deadly weapon, N.J.S.A. 2C:15-1 (count three); the robbery of Honorio Delgado by threatening the use of a deadly weapon, N.J.S.A. 2C:15-1 (count four); the possession of a weapon for an ...