On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 96-05-724.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and Koblitz.
Defendant Tulio Rafael Mena appeals his convictions arising from two 1995 gas station robberies on Route 4 in Paramus, which he committed while armed with an imitation handgun. He was eighteen years old at the time of the crimes. Defendant was a fugitive from his trial date in 1997 until his arrest in New York in 2008. His trial occurred in 2009.
On May 30, 1996, a Bergen County Grand Jury returned Indictment No. 96-05-724 charging defendant and Hector Alexis Bautista with three counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts one, three and five), and three counts of fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4e (counts two, four and six). By the time defendant ultimately was tried, the State was unable to locate the victim of the armed robbery charged in counts one and two, which occurred in Hasbrouck Heights, so the State dismissed those counts of the indictment prior to trial.
Defendant was convicted of all remaining counts, and on July 17, 2009, he was sentenced to fifteen years in custody on counts three and five, to run consecutively to each other, with seven and one-half years of parole ineligibility on each count. On counts four and six, defendant received concurrent eighteen-month terms of imprisonment. The court imposed the requisite financial penalties for each offense.
At trial, the gas station attendant from the first Route 4 robbery testified to the following facts about the night of July 19, 1995. At about 11 p.m., defendant and another man in a Ford Taurus pulled up to a gas pump and asked for five dollars worth of gas. Defendant then put a gun to the attendant's stomach, and both men demanded money, speaking in Spanish. The attendant gave defendant approximately two-hundred dollars, and the two men drove away. The attendant wrote down the license plate number of their car and then called 9-1-1.
A few minutes later, at another gas station approximately a mile and a-half away on Route 4, the attendant was held up at gunpoint by two men in a Taurus who spoke Spanish to each other. Although they pointed a gun at the attendant's chest, the attendant struggled with them, ran away and flagged down a police officer. Officer Albert Sodaro arrested defendant, who was in the driver's seat, and Bautista, who was in the front passenger seat. Sodaro patted the men down and removed a bundle of money from each man's pockets; approximately one hundred thirty dollars from defendant's pocket, and fifty-seven dollars from Bautista's. He searched the Taurus in the presence of Detective Sergeant Richard Cary*fn1 and recovered a black steel pistol with the words "tradition" and "western cowboy" imprinted on it, which was protruding from the right front passenger seat.
The police ultimately determined that the pistol was not a real gun.
At the police station, defendant waived his Miranda rights and gave an oral and written statement implicating himself and Bautista in the two robberies. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Defendant did not testify at trial.
Bautista pleaded guilty to two robbery counts in the present indictment as well as an additional robbery count in another indictment in February 1998. Initially, Bautista was sentenced to three consecutive fifteen-year terms subject to five years of parole ineligibility on each. Bautista appealed his sentence, and after we remanded, he was re-sentenced to the same aggregate forty-five-year term with fifteen years of parole ineligibility. Bautista did not appeal this second sentencing, but filed three petitions for post-conviction relief (PCR), two of which were denied and the other withdrawn. Bautista appealed the denial of one of the PCR petitions, and we affirmed. State v. Bautista, No. A-1786-08 (App. Div. Dec. 8, 2009). Defendant raises the following arguments on appeal:
MENA'S CONVICTIONS MUST BE VACATED BECAUSE OF THE MANNER IN WHICH HE WAS PREJUDICED BY THE TRIAL JUDGE'S REMARKS TO DEFENSE COUNSEL IN THE PRESENCE OF THE JURY
MENA'S CONVICTIONS MUST BE VACATED BECAUSE THE STATE'S FAILURE TO PRODUCE SODARO AT TRIAL VIOLATED HIS RIGHT TO CONFRONTATION, AS WELL AS THE RELEVANT RULES OF EVIDENCE POINT C. AT A MINIMUM, MENA MUST BE RESENTENCED BECAUSE HIS SENTENCE WAS GROSSLY DISPROPORTIONATE TO THE SENTENCE HIS CO-DEFENDANT RECEIVED FOR THE SAME SERIES OF OFFENSES
After reviewing the record in light of the contentions advanced on appeal, we affirm the convictions and remand for re-sentencing.
I In Point A of his brief, defendant argues that the trial court's remarks to defense counsel during counsel's opening statement were unduly prejudicial. During defense counsel's opening statement, after he asserted that defendant's purported statement was not his, the court said: "What are you talking about that it's not his statement? Counsel, I - - I don't know where you're heading. This is completely - - completely wrong during an opening statement." Defense counsel responded saying, "[j]udge, at - - it has to do with what is eventually going to be introduced at trial and eventually it - - ." The court then cut defense counsel off and said "[t]he jury will ...