November 3, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGELO M. ROLLERI, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JONATHAN CASTAGNETTO, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ON THE LAW OF PRIOR INCONSISTENT STATEMENTS. (Not Raised Below).
VI. 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 ADMISSION OF HIGHLY INCRIMINATING EVIDENCE WITHOUT A PROPER FOUNDATION SHOWING THAT ITS KEY WITNESS HAD KNOWLEDGE OF THE FACTS BASED ON PERSONAL OBSERVATIONS. (Not Raised Below).
VII. 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 ERRONEOUS ADMISSION OF OTHER-CRIME EVIDENCE.
VIII. 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 TRIAL COURT'S ERRONEOUS, ONE-SIDED, PREJUDICIAL INSTRUCTION ON THE LAW OF CIRCUMSTANTIAL EVIDENCE. (Not Raised Below).
IX. 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 INCOMPLETE, ERRONEOUS, PREJUDICIAL INSTRUCTION ON THE LAW OF ATTEMPT. (Not Raised Below).
X. THE DEFENDANT'S SENTENCE [WAS] EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
B. THE TRIAL COURT IMPROPERLY MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
C. THE SENTENCE ON INDICTMENT NO. 08-06-1122 SHOULD RUN CONCURRENTLY WITH THE SENTENCE ON INDICTMENT NO. 07-10-1703.
The argument presented in Point I is premised on defendant's claim that the guilty pleas of his co-defendants Cruz and Aponte are illegal because they lacked the factual basis that is required by Rule 3:9-2. He submits that the State, with promises of leniency and threats of prosecution, either illegally secured guilty pleas from innocent men or allowed guilty men to commit perjury at trial. Relying on judicial precedents in civil cases disapproving the attachment of extraneous conditions to contracts, permits and variances, Castagnetto urges us to conclude that the State "overreached."
The argument was not raised in the trial court, and it is not supported by the record on appeal. There are no references to the transcripts of the plea proceedings, just references to isolated responses Cruz and Aponte gave to questions defense counsel fashioned to demonstrate their motive to testify falsely at trial. Read as a whole, the testimony of these witnesses and others at trial establishes an adequate legal basis for the State's decision to pursue charges against these defendants.
Contrary to Castagnetto's argument on appeal, the State had no cause to take remedial action to address perjured testimony. The inconsistency alleged on appeal concerns Cruz's and Aponte's prior knowledge of the plan, but a false statement made under oath is not perjury unless the statement is material, N.J.S.A. 2C:28-1a. At this trial, Aponte's and Cruz's prior knowledge of the plan against Salas was not material. The material questions were: whether the defendants on trial had a plan to rob and kill Salas, which the jurors concluded they did not; and whether Castagnetto and Rolleri had two handguns without having obtained a permit to carry them, which the jurors concluded they did.
Castagnetto's second objection to this prosecution is based on a condition of Verma's plea agreement, which precluded her from contacting her co-defendants and was conditioned on her giving truthful testimony at her co-defendants' trial. In Point II, he contends that the provision impermissibly interfered with his right to present a defense. The trial judge addressed this question on the record prior to trial. In the presence of the attorneys, he advised Verma that she could speak with defense counsel if she wished and stressed that she would not be subject to any adverse consequence if she elected to do so. Verma acknowledged that she understood the choice was hers. In a subsequent proceeding, the court invited defense counsel to brief the issue, but the question was not raised again.
The law is well-settled. The State may not condition a plea agreement on a defendant's promise to refrain from testifying for a co-defendant. State v. Fort, 101 N.J. 123, 131 (1985). Such a limitation is impermissible because it deprives the defendant of the right to present a defense. Ibid.
The condition in Verma's plea agreement did not preclude the defendants from calling Verma to testify; it precluded her from speaking to her co-defendants. Fort does not preclude agreements restricting contact between co-defendants. Moreover, to the extent that Verma could have interpreted the condition as one limiting her right to speak to her co-defendants' lawyers, the judge made it clear that Verma could do that, and Verma stated she understood that the choice was hers.
There is no question that the State may condition a plea agreement on a defendant's agreement to give truthful testimony as the State's witness. State v. Long, 119 N.J. 439, 488-89 (1990). In that circumstance, the defense remains free to cross-examine the testifying co-defendant, recall the testifying co-defendant during the defense case and, if the State elects not to call the co-defendant as a witness, present the co-defendant as a witness. Id. at 489. Thus, the defendant's right to present a defense and cross-examine are preserved. This agreement was of that sort.
In Points III and IX, Castagnetto raises for the first time on appeal, objections to the judge's jury instruction on complicity. We decline to consider these issues, because the jurors acquitted Castagnetto of the crimes on which the judge directed them to consider accomplice liability - murder, robbery and theft. The jury found Castagnetto guilty of a different crime - two counts of possessing handguns without first having obtained a permit. The charge given on that crime directed the jurors to consider actual possession, constructive possession and joint possession, but not possession as an accomplice. Accordingly, beyond any doubt, error in the complicity charge was clearly incapable of affecting the jury's verdict on the charges that resulted in guilty verdicts. R. 2:10-2.
Castagnetto's claim of impermissible prosecutorial comment on his silence at trial, raised in Point IV, is based on a single statement the prosecutor made in summation. The prosecutor said, "There's no evidence to indicate that anyone else other than these three [defendants] or the four people that you heard from on the witness stand is involved in this murder."
That statement is a permissible fair comment on the evidence. State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 539 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). It cannot be reasonably understood as a reference to Castagnetto's decision against testifying, and not one of the defense counsel objected. In general, when defense counsel does not object at trial, an appellate court will not find prejudice.
State v. Josephs, 174 N.J. 44, 124 (2002). Because the statement about which defendant complains was not objectionable, application of that general rule is clearly warranted.
In Point V, Castagnetto claims the court erred by failing to direct the jurors that they could consider as evidence an out-of-court statement made by Cruz that was inconsistent with his trial testimony. This instruction was not requested at trial, and for that reason we must disregard the error unless it was "clearly capable of producing an unjust result." R. 2:10-2.
When Cruz was first interviewed by the police, he told them he did not see any guns on the night Salas was killed and that Castagnetto was not involved. At trial, Cruz's testimony contradicted that statement. But the defense confronted him with his initial statement on cross-examination, and Cruz testified that he had told the police that he did not see the guns that night and that neither Castagnetto nor Rolleri were involved in the robbery or shooting. The judge, quite properly, did not instruct the jurors to consider his testimony about the initial statement only for a limited purpose. See N.J.R.E. 803(a)(1).
Pursuant to N.J.R.E. 803(a)(1), Cruz's initial statement was admissible for the truth of the facts he asserted. Arguably, the jurors should have been advised of that fact. See State v. Hammond, 338 N.J. Super. 330, 341, 343 (App. Div.) (explaining an instruction could be important but finding the omission harmless in that case), certif. denied, 169 N.J. 609 (2001); cf. State v. Allen, 308 N.J. Super. 421, 431 (App. Div. 1998) (noting omission of a charge on consideration of inconsistent statements but focusing on omission of portion relevant to credibility in concluding that cumulative error required a new trial).
We cannot conclude that an instruction on use of Cruz's trial testimony about his prior statement was essential in this case. First, the jurors were not told Cruz's testimony about his initial statement was admitted for a limited purpose. Second, the judge directed the jurors to consider all trial testimony as evidence unless the judge had stricken it or admitted it for a limited purpose. Thus, a separate instruction explaining the evidential value of this testimony was unnecessary, and the omission was "clearly incapable of producing an unjust result." R. 2:10-2.
The focus of Castagnetto's argument in Point VI is that Aponte gave testimony about ownership and possession of the handguns, without a foundation establishing the source of his knowledge. We reject this argument because it overlooks Aponte's testimony about his regular visits to the Delaware Street apartment and his involvement with the activities therein, which gave him an opportunity to see the guns, who handled them and where they were kept.
Castagnetto's final objections to his convictions, raised in Points VII and VIII, concern the admission of evidence about his involvement in the drug business and the judge's instruction on circumstantial evidence. Our review of the record convinces us that these arguments are without sufficient merit to warrant any discussion in a written opinion. R. 2:11-3(e)(2).
We turn to consider Castagnetto's objections to his sentence. The argument, presented in Point X, is limited to the concurrent five-year terms he received for possession of a handgun without a permit, N.J.S.A. 2C:39-5b; both terms are subject to two-and-one-half-year terms of parole ineligibility.
In reviewing sentences, this court must affirm so long as the trial judge's findings and balancing of aggravating and mitigating factors "are supported by competent credible evidence in the record," and the judge followed the Code's guidelines and imposed a sentence that does not shock the judicial conscience. State v. Cassady, 198 N.J. 165, 180-81 (2009) (internal quotation marks omitted). After considering the record in light of defendant's arguments, we find no basis to disturb this sentence.
The judge adhered to the Code's sentencing scheme as construed by the case law. When Castagnetto possessed these handguns without a permit, the crime was one of the third degree subject to a sentence of imprisonment for a term between three and five years and a period of parole ineligibility for one-half of that term. The sentence was permissible if the judge was clearly convinced that the aggravating factors substantially outweighed the mitigating. See N.J.S.A. 2C:43-6a(3), b; N.J.S.A. 2C:44-1(f); cf. L. 2007, c. 284, § 1 (amending N.J.S.A. 2C:39-5b to elevate the crime to one of the second degree and adding N.J.S.A. 2C:39-5i to mandate a five-year period of parole ineligibility in the presence of a designated aggravating factor). Thus, his sentence and term of parole ineligibility depends upon the judge's findings and balancing of the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1a, b.
Castagnetto had one prior juvenile adjudication and no prior convictions. Between the commission of these crimes and his sentencing, however, defendant had pled guilty to third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); and retaliating against a witness, N.J.S.A. 2C:28-5b. The judge found three aggravating factors that are well-supported by the record: the risk that defendant would commit another crime, N.J.S.A. 2C:44-1a(3); a substantial likelihood that defendant was involved in organized criminal activity, N.J.S.A. 2C:44-1a(5); and the need to deter defendant and others, N.J.S.A. 2C:44-1a(9). The judge found no mitigating factors. On those findings, the five-year term and the parole ineligibility period were within the court's discretion, and the sentence does not shock the judicial conscience. We do note, however, that the judgment of conviction reflects one aggravating factor the court did not find, N.J.S.A. 2C:44-1a(6), but he did not recite or rely on that factor at sentencing.
Rolleri raises four issues on appeal:
I. THE STATE'S VIOLATION OF THE SEQUESTRATION ORDER DENIED THE DEFENDANT A FAIR TRIAL.
II. THE PRESENTATION OF A WITNESS BY THE STATE AT TRIAL IT KNEW WOULD NOT TESTIFY CONSTITUTED PROSECUTORIAL MISCONDUCT THAT DEPRIVED DEFENDANT OF A FAIR TRIAL.
III. THE PLEA AGREEMENT OF A STATE WITNESS THAT PROHIBITED HER FROM CONTACT WITH DEFENDANT VIOLATED HIS RIGHT TO PRESENT A DEFENSE AND TO DUE PROCESS OF LAW.
IV. THE DEFENDANT'S AGGREGATE SENTENCE OF 5 1/2 YEARS WITH 2 1/2 YEARS OF PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED
(Not raised below).
In support of his claim that violation of the sequestration order warrants reversal of his conviction (Point I), Rolleri argues that during a break in his testimony, the State's investigator, Trillhasse, spoke to Aponte and another investigator, Detective Killane. When the defense alleged a violation of the sequestration order, the judge immediately excused the jury and conducted a hearing.
During the brief hearing, the investigators testified and explained that they spoke with Aponte for a few minutes to ask about the meaning of something said during a phone conversation Aponte had with Lopez after Salas was killed. The question was whether Aponte was referring to hiding the drugs that were in the apartment or hiding the guns. Aponte told them he was referring to drugs. According to Trillhasse, he did not say anything about his testimony and he further indicated that since the trial started he had spoken to other witnesses to schedule their testimony and to a witness for the defense. The judge concluded that the officers' contact with Aponte and the other witnesses did not violate the sequestration order. Accordingly, the judge denied the request for a mistrial and did not impose a sanction or take any action to remedy the alleged violation.
Imposition and enforcement of sequestration orders as well as rulings on application for mistrial are matters left to the sound discretion of the trial judge. State v. DiRienzo, 53 N.J. 360, 383 (1969) (mistrial); State v. Williams, 404 N.J. Super. 147, 159 (App. Div. 2008) (sequestration), certif. denied, 201 N.J. 440 (2010). Where there is an alleged violation, the judge "'should promptly conduct a voir dire out of the presence of the jury in order to ascertain the nature and extent of [the] violation . . . [and] thereupon determine what remedial action is required, if any, in light of all the circumstances.'" State v. Dayton, 292 N.J. Super. 76, 89 (App. Div. 1996) (quoting State v. Tillman, 122 N.J. Super. 137, 143 (App. Div.), certif. denied, 62 N.J. 428 (1973)). The most drastic remedies - barring a witness from testifying or granting a mistrial - are not properly invoked unless the judge concludes that no other remedy will sufficiently dissipate the prejudice. Id. at 89-90.
"[T]he reason for sequestration is to prevent prospective witnesses from hearing what the other witnesses detail in their evidence, for the less a witness hears of another's testimony the more likely is he to declare his own knowledge simply and unbiased." State v. DiModica, 40 N.J. 404, 413 (1963) (internal quotation marks omitted); Williams, supra, 404 N.J. Super. at 160. Here, in the face of testimony suggesting a possible violation, the judge took testimony and considered its significance in light of the purpose of sequestration. Nothing in this record suggests that the judge did anything other than conscientiously exercise his discretion in accordance with the law. Accordingly, we reject this claim.
Discussion of the claim of prosecutorial misconduct raised in Point II of Rolleri's brief requires some factual background. As our discussion of the facts discloses, Rivera testified for the State. His testimony was presented in two segments.
The first time Rivera was called to the stand, he testified about his guilty plea to second-degree robbery and acknowledged that Rolleri and Castagnetto were involved. His testimony that day also provided information about how he knew the defendants and that he met them in Perth Amboy on the night Salas was killed. When asked what happened after he got into the car that night, Rivera said, "I don't want to answer no more questions."
The judge took immediate action. He excused the jurors, and then stated: "The record should reflect that the witness turned to me and said I don't want to answer any further questions. I thought it would be prudent to get the jury out so I can inquire further what's going on here." It is not at all clear whether anyone other than the judge and the transcriber heard Rivera say he did not want to answer. The prosecutor said she did not.
In any event, the judge questioned Rivera after the jury left the courtroom. Rivera reiterated that he did not want to answer any further questions, acknowledged his plea agreement and that he had been sentenced, and confirmed that he had an obligation to testify. He also testified that he had told the prosecutor and the State's investigators that he did not want to testify, and he explained that he did not feel comfortable testifying.
Before recalling the jurors, the judge directed Rivera to testify and told him he would be held in contempt if he did not. Rivera said he would refuse. After discussing the issue with counsel, the court determined to continue the trial with another witness, to recall Rivera for a contempt hearing after the trial adjourned for the day and to withhold a decision on defense counsel's motion to grant a mistrial or strike Rivera's testimony until it was clear that Rivera would not testify.
When the jurors returned, the judge instructed them that Rivera was testifying when they adjourned for the last break but that another witness was now ready to testify. He further directed the jurors not to draw a negative inference based on Rivera's absence, and he explained that as the person responsible to control the order of things in the courtroom he had made the decision to move on to the next witness.
Subsequently, the judge found Rivera in contempt. On the third day of trial following the contempt hearing, Rivera completed his testimony, and in so doing he fully responded to every question asked.
On appeal, defendant argues that the prosecutor's egregious conduct deprived him of a fair trial. We reject that claim.
The Supreme Court's most recent decision addressing the issue of a recalcitrant witness suggests that it may be misconduct for a prosecutor to call a recalcitrant witness to testify without alerting the defense and the trial judge to the potential problem. State v. Burns, 192 N.J. 312, 332-35 (2007). There is no reason to consider that question in this case, because it is clear that defendant could not have been prejudiced in any way. The judge took appropriate action to address Rivera's contempt, directed the jury not to draw a negative inference from the interruption of Rivera's testimony and accurately attributed the decision to have another witness testify to the court. In this circumstance, we cannot discern any potential for prejudice of the sort that would warrant reversal of Rolleri's conviction. See id. at 333-40 (discussing the potential for prejudice resulting from limitation on cross- examination and arising from reasonable inferences casting a negative light on defendants or adding unfair weight to the State's evidence and finding none).
For the reasons stated in Section I(B) of this opinion, we conclude that Rolleri's claim that the State's plea agreement with Verma deprived him of his due process is without merit.
As we indicated in addressing defendant Castagnetto's sentence, this court must affirm a sentence if the judge followed the sentencing guidelines, made findings on aggravating and mitigating factors and their balance that "are supported by competent credible evidence in the record," and imposed a sentence that does not shock the judicial conscience. Cassady, supra, 198 N.J. at 180-82 (internal quotation marks omitted). After conducting that review, we find no reason to disturb this sentence.
We begin by noting that Rolleri misstates the term of his sentence. He, like Castagnetto, was sentenced for two third-degree crimes - two counts of possession with a handgun without a permit, N.J.S.A. 2C:39-5b. Cf. L. 2007, c. 284, § 1 (amending N.J.S.A. 2C:39-5b to elevate the crime to one of the second degree and mandating a five-year period of parole ineligibility in the presence of a designated aggravating factor). For these convictions, the judge imposed concurrent five-year terms with a two-and-one-half-year period of parole ineligibility, the maximum sentence permissible. See N.J.S.A. 2C:43-6a(3), b; N.J.S.A. 2C:44-1(f). The propriety of the sentence and the parole ineligibility period depends upon the judge's findings and balancing of the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1a, b. See N.J.S.A. 2C:43-6a(3), b; N.J.S.A. 2C:44-1(f). In the same sentencing proceeding, the judge imposed a consecutive six-month sentence on Rolleri's plea of guilty to possession of marijuana, N.J.S.A. 2C:35-5b(12), which was charged in an accusation filed after these crimes were committed.
Rolleri had two prior convictions, one for conspiring to distribute drugs and one for distributing drugs, and he was on probation when he committed these crimes. The judge found four aggravating factors that are well-supported by the record: the risk that defendant would commit another crime, N.J.S.A. 2C:44-1a(3); a substantial likelihood that defendant was involved in organized criminal activity, N.J.S.A. 2C:44-1a(5); the extent of defendant's record, N.J.S.A. 2C:44-1a(6); and the need to deter defendant and others, N.J.S.A. 2C:44-1a(9). The judge found no mitigating factors.
On those findings, the five-year term and the period of parole ineligibility were within the court's discretion, and the sentence does not shock the judicial conscience.
Affirmed and remanded for the limited purpose of correcting Castagnetto's judgment of conviction.