On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 00-10-0912.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2010 - Decided Before Judges Wefing and Payne.
Defendant appeals from two orders entered by the trial court on April 20, 2007. The first, a final judgment of conviction, recited defendant's convictions following a jury trial for second-degree robbery, N.J.S.A. 2C:15-1a(1) and (2); two counts of aggravated assault, N.J.S.A. 2C:12-1b(1) and (7); and burglary, N.J.S.A. 2C:18-2, and imposed an aggregate sentence of ten years in prison, subject to the parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The second denied defendant's motion to be resentenced under State v. Natale, 178 N.J. 51 (2003). After reviewing the record in light of the contentions advanced on appeal, we affirm.
The judgment of conviction relates to offenses committed in 2000 and for which defendant was tried in 2001. Two appeals have occurred in the interim, State v. Pierce, No. A-4208-01T4 (App. Div. Nov. 13, 2003), and State v. Pierce, No. A-5617-03T4 (Oct. 26, 2005). In our first opinion, we gave the following factual background to the charges against defendant.
According to the State's proofs at trial, the victim, Dimas Munoz, who had suffered some residual brain damage from an earlier robbery in 1999, lived in an apartment in Vineland, where he allowed an acquaintance of his, Joseph Martinez, to stay with him rent-free. In July 2000, Munoz received a pension payout check for approximately $2000. Having learned of this event, Martinez enlisted defendant, who was Munoz' next-door neighbor, to help him rob Munoz of the pension monies. Together, they hatched a scheme wherein defendant would disguise his identity and hide in Munoz' bathroom until the lights were turned out at which time Martinez would strike the victim[,] and both men would take the cash from him.
On July 14, 2000, Martinez and Munoz walked to a liquor store where Munoz cashed his check and bought some beer. When they arrived back at the apartment building, and while Munoz was talking to some friends, Martinez walked over to defendant. Then, as planned, defendant got a hooded jacket and went in to Munoz' bathroom to wait for the victim to either fall asleep or pass out. Once back in the apartment, Martinez punched Munoz in the mouth. When Munoz began to fight back, defendant came out of the bathroom, raised the ceramic toilet bowl tank lid that he was holding, and crashed it down on Munoz' head. The two men dragged Munoz into the bathroom and put him in the shower to revive him. They also went through the victim's pockets and took $1800 in cash which they split $1100 for Martinez and $700 for defendant. As a result of this incident, Munoz suffered deep cuts over his forehead, a fractured skull and shoulder blade, and a ruptured left eye socket necessitating removal of his left eye.
Fearing they had killed Munoz, Martinez wanted to call the police but defendant talked him out of it. Martinez left the area but eventually returned to Vineland, apparently distraught over the incident and reportedly suicidal. When ultimately confronted by police, Martinez cooperated and gave a statement implicating defendant in the criminal episode. When the police first arrived at defendant's apartment on an outstanding warrant for contempt of court, defendant denied any involvement in the robbery and assault of Munoz. However, when confronted with Martinez' statement, defendant admitted agreeing to help Martinez in the theft, but only as a "lookout," in return for which he was to receive $400. Defendant denied being inside Munoz' apartment during the incident, insisting instead that he remained outside on the front steps.
[State v. Pierce, No. A-4208-01, supra, slip op at 2-4.]
In that first appeal, defendant raised three contentions: that the trial court erred in admitting testimony that defendant had been arrested on an outstanding warrant, that his sentence had been excessive, and that the trial court had also erred in the manner in which it handled a post-trial complaint of juror misconduct. We dealt with the substantive merits of defendant's first two arguments and rejected them. Defendant's third contention, however, raised a matter of concern. We noted that shortly after the jury returned its verdict, an alternate juror contacted defense counsel to advise that he believed that one of the deliberating jurors was related to someone in the case. Id. at 7. Defendant's attorney promptly notified the prosecutor and the trial judge. The trial judge placed a telephone call to that juror from chambers. Our opinion notes that the conversation was on the record and in the presence of the prosecutor; it also notes that while defense counsel was supposed to be connected to this call, the transcript indicates no response from him to an inquiry from the trial judge. Id. at 8. The trial judge asked this juror to provide more information, and the juror responded:
Yes, after we left that evening, Thursday evening, I overheard two of the jurors mention that one of the other jurors was a cousin to somebody involved in the case. I believe it was Martinez, but I don't know that. [Ibid.]
We then recounted a further event that day.
A second conversation took place between the judge and juror McCaffrey on that same day, this one not on the record and in the presence of only the judge and his secretary. The judge put on the record the details of that conversation. During this conversation, juror McCaffrey advised that he remembered more details. He saw two jurors near the elevator shortly after the verdict. One of them said to the other, "[c]an you believe she just told us now that she's related to one of them?" When McCaffrey tried to question the two men, they ignored him and entered the elevator. [Ibid.]
Not content with this, the trial judge then questioned other jurors, also on his own. Based upon his own independent investigation, he concluded that the allegation of juror misconduct was not ...