August 16, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN TRICOCHE, A/K/A JOHN EARL, MARCEL ABRAHAM, JAY GREEN, JOHN T. MOORE, JAY TORRES, JOHN TORRES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-02-0739.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 12, 2011
Before Judges Graves and St. John.
In a five-count indictment, a Camden County grand jury charged defendant John Tricoche with the following offenses: first-degree attempted armed robbery, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count four); and second-degree certain persons not to be in possession of weapons, N.J.S.A. 2C:39-7(b) (count five). Following a jury trial, defendant was found not guilty on count one and two lesser-included charges, second-degree attempted robbery and third-degree theft from the person, but he was found guilty on counts two, three, and four. In a second trial before the same jury, defendant was convicted of count five.*fn1
Prior to sentencing, the State filed a motion to sentence defendant to an extended term as a persistent offender under N.J.S.A. 2C:44-3(a). Defendant did not dispute that he was extended-term eligible. Nevertheless, the court found that an appropriate sentence could be imposed "within the normal sentencing guidelines" and denied the State's motion.
At sentencing on November 13, 2009, the court identified three aggravating factors: the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. After merging count four (terroristic threats) with count two (possession of a handgun for an unlawful purpose), the court imposed a nine-year prison term with four-and-one-half years of parole ineligibility on count two. On count three (possession of a handgun without a permit), defendant was sentenced to a concurrent six-year term with three years of parole ineligibility. On count five (certain persons not to possess weapons), the court imposed a consecutive ten-year term with five years of parole ineligibility. Accordingly, defendant was sentenced to an aggregate nineteen-year term of imprisonment subject to nine-and-one-half years of parole ineligibility.
On appeal, defendant's attorney presents the following arguments for our consideration:
THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO CONFRONTATION BY ADMITTING THE HEARSAY STATEMENT OF THE SUPPOSED VICTIM IN THE ABSENCE OF ANY OPPORTUNITY FOR CROSS- EXAMINATION. U.S. CONST., Amends. VI, XIV; N.J. CONST. (1947), Art. 1, Paras. 1, 9 and 10.
BECAUSE THE STATEMENT OF THE NON-TESTIFYING VICTIM, WHICH CONSTITUTED CRITICAL EVIDENCE IN THE CASE, WAS NEVER RECORDED AND WAS REPORTEDLY HEARD BY ONLY ONE POLICE OFFICER, THE COURT SHOULD HAVE INSTRUCTED THE JURY ON THE PROBLEMS INVOLVED IN ACCURATELY TRANSMITTING ORAL UTTERANCES. (Not Raised Below).
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE CHARGE OF TERRORISTIC THREATS.
THE IMPOSITION OF A SENTENCE NEAR THE TOP OF THE RANGE FOR THE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE, COUPLED WITH A CONSECUTIVE TERM AT THE VERY TOP OF THE RANGE FOR CERTAIN PERSONS NOT TO HAVE A WEAPON, RESULTED IN A MANIFESTLY EXCESSIVE SENTENCE.
In addition, defendant presents the following arguments in a pro se supplemental brief:
THE SENTENCING COURT FAILED TO TAKE INTO CONSIDERATION MITIGATING FACTORS TWO, SIX AND ELEVEN UNDER N.J.S.A. 2C:44-1(b).
THE VERDICTS WERE SHARPLY AGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL.
THE DEFENDANT SHOULD HAVE BEEN GIVEN A WADE
HEARING TO DETERMINE IF HE WAS THE PERSON WHO HAD A CONFLICT WITH THE VICTIM ON THE NIGHT IN QUESTION.
THE STATE FAILED TO CONDUCT A PROBING INQUIRY TO LOCATE THE MISSING WITNESS MR.
THE TRIAL JUDGE MADE AN ERROR BY ALLOWING THE VICTIM MR. RAMOS'S HEARSAY UNDER THE EXCITED UTTERANCE CLAUSE.
THE ARRESTING OFFICER FAILED TO FOLLOW POLICE PROCEDURES IN THE PROCESSING AND [HANDLING] OF THE WEAPON / GUN FOUND IN THE BATHROOM OF SCHMINSKY'S BAR AND NOT HAVING THE WEAPON / GUN FINGERPRINTED.
We have considered these arguments in light of the record and applicable legal standards, and we have concluded they are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
The facts are not complicated. On the evening of September 25, 2008, Detective Julio Rodriguez and Corporal Luis Sanchez of the Camden City Police Department were in a marked police vehicle working the 6:00 p.m. to 4:00 a.m. shift. Sanchez was driving. At about 11:52 p.m., the officers were traveling northbound on Mount Ephraim Avenue approaching Everett Street when they observed two men in the intersection "right across from Schminsky's Bar," who were later identified as Otto Ramos and defendant. Both officers testified they were approximately 100 feet from the two men and the intersection was "well lit."
Rodriguez testified that while Ramos was crossing the street carrying a case of beer, he was approached by defendant. Defendant then reached into his waistband, pulled out a black handgun, and pointed it in the direction of Ramos. When asked whether he was sure he saw a gun, Rodriguez replied, "I am sure. I [saw] the perfect silhouette of a handgun coming out, in the direction of the victim." According to Rodriguez, Ramos then dropped the case of beer, "threw his hands up in the air and ran frantically" towards the police car. Although Ramos was difficult to understand because he was "highly intoxicated" and "excited," Rodriguez recalled that Ramos was yelling in Spanish about "that gun."
Corporal Sanchez provided similar testimony when asked to explain what happened at about 11:52 that night:
We . . . were traveling northbound on Mt. Ephraim Avenue, approaching Everett Street. I observed a dark-skinned Hispanic male and a light-skinned Hispanic male facing each other. I observed a Hispanic male later identified as John Tricoche pulling a black object from his right side of his waistband and then pointing it in the direction as if he was gripping something in the direction of the light-skinned Hispanic male who was later identified as Otto Ramos.
Q. . . . And then what happened next?
A. At that point Ramos . . . observed our . . . patrol unit approaching. He started screaming, waiving his hands up in the air, saying in Spanish that he's trying to rob me.
Q. Do you speak Spanish?
Q. And when you say Mr. Ramos is screaming in Spanish he's trying to rob me . . . who was he saying that to?
A. . . . I'm assuming he was saying it to us because we were approaching them.
And then what happened next?
A. At that point Tricoche turned and it appeared that he saw our marked unit.
With his right hand he tucked the black object back into his right side of his waistband and was . . . quickly walking into Schminsky's Bar.
Both officers pursued defendant into the bar and never lost sight of him until he entered the bar's bathroom. At that point, the officers pushed the door open and Rodriguez saw defendant "attempt to discard the revolver . . . into the [trash] receptacle." Defendant was then arrested and taken from the bar by Sanchez. Rodriguez initially stayed behind to safeguard the weapon until the identification bureau arrived, but after Sanchez radioed for assistance, Rodriguez "grabbed the weapon" and went to assist Sanchez.
The parties stipulated the handgun and the five bullets found inside the gun were "fully functional and operational." In addition, the parties agreed that defendant never applied for or was issued a firearm identification card or weapons permit.
Rodriguez and Sanchez were the only State's witnesses. Ramos did not testify at trial because the prosecutor was unable to locate him.
Defendant elected not to testify, but he presented the testimony of Veronica Bishop, who was working at Schminsky's Bar on the night in question. Bishop testified she saw defendant come into the bar with a lit cigarette and then go into the bathroom after she told him he was not allowed to smoke in the bar. According to Bishop, the police arrived within "seconds" and after they "pulled" defendant from the men's room, she saw one of the officers exit the bathroom with "a gun on a pencil."
In his first point, defendant contends the trial court violated his right to confrontation by admitting Sanchez's testimony that as Ramos ran towards the officers, he yelled that defendant was trying to rob him. The trial court found that the statement by Ramos was non-testimonial under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), because "Mr. Ramos . . . ran to the police uttering this information before the police . . . inquired anything of him."
Given the spontaneous nature of the victim's statement and the circumstances under which it was made, we agree the statement by Ramos was a non-testimonial excited utterance that did not violate defendant's right of confrontation. See State ex rel. J.A., 195 N.J. 324, 346 (2008) (finding that "the victim's 911 statements were not 'testimony' in the Sixth Amendment sense----an account of a past event----but rather a cry for help 'to enable police assistance to meet an ongoing emergency'") (quoting Davis v. Washington, 547 U.S. 813, 828, 126 S. Ct. 2266, 2277, 165 L. Ed. 2d 224, 240 (2006)).
In his next point, defendant argues for the first time that the jury should have been instructed "to weigh and receive Ramos' alleged statement with caution." In response, the State contends that "the court properly instructed the jury on its responsibility to assess and weigh the evidence presented, including the factors to consider in determining the credibility of the witnesses." In addition, the State contends that any possible error was harmless because defendant was acquitted of attempted robbery and the lesser-included offenses. We agree that the jury was properly charged, and we find no basis to intervene.
In his third point, defendant argues that the trial court erred in denying his motion to dismiss the terroristic threats charge at the conclusion of the State's case. Based on the State's proofs and the victim's reaction when defendant pointed the gun at him, the court determined there was sufficient evidence for the jury to find that Ramos "perceived the threat and was terrorized by it." We conclude that the court relied on well-established principles enunciated in State v. Reyes, 50 N.J. 454, 459 (1967), and that it did not err in denying the motion to dismiss.
Defendant also claims his sentence is excessive. We do not agree. "An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable." State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).
In the present matter, the trial court's findings regarding the aggravating and mitigating factors were based on competent and credible evidence in the record. The court correctly applied the sentencing guidelines enunciated in the Criminal Code and, in applying the facts to the law, reached a conclusion that could have reasonably been made upon a weighing of the relevant factors. See State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Ghertler, 114 N.J. 383, 388-89 (1989). As a reviewing court, we may modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case.