On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-10-1703 and 08-06-1122.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 26, 2011
Before Judges Parrillo, Grall and Skillman.
Defendants Jonathan Castagnetto and Angelo M. Rolleri appeal from judgments of conviction. Their separate appeals were submitted on the same calendar, and we now consolidate them and affirm their convictions and sentences.
The prosecution arose from a robbery and shooting that resulted in the death of Ramon Antonio Salas, Jr. The State's theory of the case was that Castagnetto and Rolleri were members of a group of drug dealers led by Salas while their boss, co-defendant Alex Lopez, was incarcerated. Dissatisfied with Salas's self-dealing, the others conspired to rob and kill him.
Castagnetto, Rolleri and Lopez were tried together. Other members of the group, who had been charged as co-defendants, pled guilty and testified for the State at their confederates' trial. In addition, the State presented recordings made while Lopez was incarcerated of his phone conversations with Salas, Rolleri and Castagnetto, and with his girlfriend Becky Verma and another confederate, Johnny Aponte, Jr.
The jurors acquitted Lopez of all charges, but they found both Castagnetto and Rolleri guilty of possessing two handguns without first obtaining a permit to carry them, N.J.S.A. 2C:39- 5b, a .380 caliber semi-automatic handgun and a .38 caliber revolver. They acquitted Castagnetto and Rolleri of murder, N.J.S.A. 2C:11-3a(1); felony murder, N.J.S.A. 2C:11-3a(3); robbery, N.J.S.A. 2C:15-1; theft, N.J.S.A. 2C:20-3; possession of two firearms with the purpose of using them unlawfully against another, N.J.S.A. 2C:39-4a; conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3a(1); and conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1.
On these convictions, the judge sentenced both defendants to concurrent five-year terms of imprisonment subject to twoand-one-half years of parole ineligibility. Appropriate fines, assessments, and penalties were also imposed.*fn1
The evidence presented to the jurors can be summarized as follows. In 2006, Lopez moved from Perth Amboy to an apartment on Delaware Street in Elizabeth, where he operated a drug business with the help of Verma and Aponte. Lopez shared the apartment with Salas, but Salas had another job and was not involved in the drug business until Lopez was arrested in Spring 2006. At that point, Salas lent his assistance.
Following his arrest, Lopez, through Verma, also sought help from Rolleri and Castagnetto. They agreed and moved into the Delaware Street residence with Salas. Verma, Rolleri and Castagnetto came to believe that Salas was spending money from the business for his own purposes, and they alerted Lopez. Aponte, who regularly spent much of his day at the Delaware Street apartment and sometimes stayed there overnight, heard Rolleri and Castagnetto argue with Salas and heard their phone reports to Lopez. Aponte knew that Rolleri and Castagnetto kept their guns - a .380 semi-automatic and .38 revolver - in a safe at the Delaware Street residence. Carlo Cruz, Jr., a frequent visitor to the apartment, saw drugs and guns there, but he thought they belonged to Salas.
On June 22, 2006, Verma gave Salas a ride to a house on High Street in Perth Amboy. She and Rolleri then went to visit Lopez, who was still incarcerated. They gave Lopez an update on Salas's spending, and Lopez reacted. He told them he wanted Salas out of his apartment and directed Rolleri to get back whatever money and drugs Salas still had.
When Verma and Rolleri returned to Elizabeth, he asked to borrow Verma's car, and she let him take it. Cruz and Aponte were in the apartment when Rolleri returned. According to Cruz, Rolleri seemed angry. Rolleri said he had to talk to Salas.
Castagnetto was there, and he also wanted to go to Perth Amboy to talk to Salas. Cruz and Aponte went with them. As they left the house for Perth Amboy, Aponte saw Castagnetto and Rolleri take their guns. Cruz saw the .380 semi-automatic in the glove compartment and Castagnetto with the other gun.
In Perth Amboy, they picked up another friend, Jose L. Rivera, who was in the parking lot of a restaurant. As they looked for Salas, Cruz called Salas's cell phone, but Salas did not answer. They drove to High Street, because Salas's friend lived there but stopped the car and parked on a side street near the waterfront.
The testimony given by the co-defendants about what transpired after they parked differs. Although Cruz and Aponte denied foreknowledge of a plan to rob Salas, Rivera testified that he knew about a plan to rob someone and thought that Cruz and Aponte had told him about it. According to Rivera, he and Cruz went to High Street first and found Salas at his friend's house. Rivera called Salas off the porch and bought drugs from him. He and Cruz then returned to the car and showed the cocaine to Rolleri, who identified it as his. After that, Cruz and Aponte saw Castagnetto and Rolleri take the guns and put on latex gloves. Rivera, Castagnetto and Rolleri then walked toward High Street, but they split up so that Rivera would approach the house from one direction and Castagnetto and Rolleri would approach from the other. Rivera went to the porch of a house across the street from the home of Salas's friend; he saw Rolleri and Castagnetto approach Salas. With Castagnetto standing at his side, Rolleri shot Salas in the head. There were no other shots fired. Salas died as a consequence. Before leaving the scene, Rivera and the others searched Salas's pockets. They took Salas's wallet and about $900.
Rivera watched while the others hid Rolleri's .380 and Castagnetto's .38 in the car, and the men left for Elizabeth. There, Cruz saw Aponte remove the .380 semi-automatic from the car's air filter. According to Aponte, Rolleri later took that gun to a friend's house.
On cross-examination, Cruz, who had pled guilty to conspiracy to commit theft by deception, answered "No" when asked whether he believed he had committed that crime. Aponte, who pled guilty to robbery, said he did not know about the plan to rob or shoot Salas that night. Although Aponte later admitted that he knew Lopez had ordered the "hit" on Salas the night before and heard Rolleri vow to execute Lopez's order, he said he did not believe that his friends would do it. Aponte also acknowledged that he had tried to call Salas to warn him about the hit, but he explained he did that just in case the others did attempt to kill him.
The defendants did not testify at trial. They did, however, present a witness who was with Salas on the porch in Perth Amboy on the night he was killed. She identified Cruz as the person who called Salas down from the porch and testified that Salas walked around the corner with Cruz. She did not see Salas again, but she heard the gunshot.
Defendant Castagnetto presents ten issues for our consideration:
I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ILLEGAL PLEA BARGAIN AGREEMENTS THAT SECURED THE TESTIMONY OF THE CO-DEFENDANTS AGAINST THE DEFENDANT. (Not Raised Below).
II. THE DEFENDANT'S RIGHT TO PRESENT A DEFENSE AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION, AND HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE PLEA CONDITION PROHIBITING STATE WITNESSES FROM SPEAKING TO THE DEFENDANT. (Not Raised Below).
III. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT TO SHOW THAT HE DISAPPROVED OR OPPOSED THE CRIMINAL ACTS. (Not Raised Below).
IV. THE DEFENDANT'S RIGHT TO BE FREE FROM SELF-INCRIMINATION AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND NEW JERSEY COMMON LAW WAS VIOLATED WHEN THE PROSECUTOR IMPROPERLY USED THE DEFENDANT'S SILENCE AT TRIAL AS EVIDENCE OF HIS GUILT. (Not Raised Below).
V. THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY PROPERLY AND COMPLETELY ...