On appeal from the Superior Court of New Jersey, Criminal Division, Bergen County, Indictment No. 01-06-1503.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2011 - Before Judges Messano, Yannotti and Kennedy.
Following a jury trial, defendant Afrim Tairi was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(a); second-degree and third-degree receiving stolen property, N.J.S.A. 2C:20-7; two counts of second-degree armed burglary, N.J.S.A. 2C:18-2; three counts of first-degree robbery, N.J.S.A. 2C:15-1; second- degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); first-degree knowing and purposeful murder of Howard Lewis, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree felony murder of Lewis, N.J.S.A. 2C:11-3(a)(3); second-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; and third-degree credit card theft, N.J.S.A. 2C:21-6(c). The judge denied defendant's motion for a new trial, and, after appropriate mergers, sentenced defendant to an aggregate term of life in prison plus eighty years, with a seventy-year period of parole ineligibility. Among the financial penalties imposed by the judge was $30 payable to the Law Enforcement Training and Equipment Fund (LEOTEF), N.J.S.A. 2C:43-33a.
Defendant raises the following arguments on appeal:
THE COURT BELOW COMMITTED REVERSIBLE ERROR BY PERMITTING THE STATE TO FILL IN THE GAPS IN ITS CASE WITH IMPERMISSIBLE HEARSAY TESTIMONY THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
THE COURT ERRED IN FAILING TO ADEQUATELY GUARD AGAINST THE INCLUSION OF THE TESTIMONY OF MARISOL MELTON AS A WITNESS TO THE INVOLVEMENT OF DEFENDANT TAIRI IN THE CRIMINAL ACTIVITIES FORMING THE BASIS OF THIS CASE.
POINT TWO THE COURT'S CHARGE TO THE JURY WAS SO FLAWED THAT IT MUST RESULT IN A REVERSAL OF THE JURY'S VERDICT.
A. THE COURT ERRED IN ALLOWING THE INCLUSION OF A FLIGHT CHARGE TO THE JURY OVER THE STRONG OBJECTION OF TRIAL COUNSEL THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
B. THE COURT'S BASIS FOR CHARGING THE JURY REGARDING FLIGHT WAS FACTUALLY AND LEGALLY INCORRECT AND GIVEN OVER THE STRONG OBJECTION OF TRIAL COUNSEL THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (Raised below)
C. BY REVERSING ITS PREVIOUS RULING THAT NO CHARGE OF FLIGHT WOULD BE GIVEN; AND THEN RULING THAT A MODIFIED FLIGHT CHARGE WOULD BE GIVEN, THE COURT DENIED DEFENDANT TAIRI THE ABILITY TO ADEQUATELY DEFEND THE ALLEGATIONS AND WAS GIVEN OVER THE STRONG OBJECTION OF TRIAL COUNSEL THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (Raised below)
D. THE COURT'S RULING ON THE INFERENCE OF FLIGHT HAD THE EFFECT OF REMOVING THE ENTIRE BURDEN OF PROOF FROM THE PROSECUTION AND WAS GIVEN OVER THE STRONG OBJECTIONS OF TRIAL COUNSEL THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (Raised below)
E. THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY ON FLIGHT, THEREBY DEPRIVING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND THE FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
F. THE COURT'S JURY INSTRUCTIONS WERE SO FLAWED AS TO CONSTITUTE REVERSIBLE ERROR THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
POINT THREE VIEWING THE STATE'S EVIDENCE IN ITS ENTIRETY, A REASONABLE JURY COULD NOT FIND THE DEFENDANT AFRIM TAIRI GUILTY OF ANY OF THE CHARGES BEYOND A REASONABLE DOUBT THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (Raised below)
THE COURT ERRED IN ALLOWING THE VERDICT FOR THE PROSECUTION TO STAND BASED UPON THE EVIDENCE PRESENTED OVER THE STRONG OBJECTION OF TRIAL COUNSEL THEREBY DENYING DEFENDANT AFRIM TAIRI A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (Raised below)
We have considered these arguments in light of the record and applicable legal standards. We affirm, but remand the matter for entry of a corrected judgment of conviction.
The trial concerned three separate criminal episodes --characterized in defendant's brief as "home invasions" -- that took place in the months of September and November 1995. At trial, which commenced in October 2009, the State relied extensively upon the testimony of Edwin Torres, who had been convicted at trial in 1998 of numerous crimes committed during the three incidents and was serving a sentence of life imprisonment plus seventy years, with a sixty-year period of parole ineligibility. Torres acknowledged testifying against defendant in anticipation of having his sentence reduced to "[l]ife with [thirty] years."
Torres first met defendant in August 1995 at a Paterson pool hall where he was introduced by a friend, Doko, who was defendant's cousin. Doko's father owned Tony's Pizzeria, one block from the pool hall and across the street from the Sealy Mattress Company (Sealy). Torres introduced defendant to Felix DeJesus.
Torres was living in Paterson, with DeJesus's sister, Marisol Melton, and her two children. DeJesus would stay with his sister on occasion, and he and Torres spent much time together. During August and September 1995, defendant was a frequent visitor at the apartment.
The Staten Island Incident
Soon after they met, defendant asked Torres if he "wanted to do some work [and] . . . go rob somebody." Torres and DeJesus agreed to participate, and defendant told them his plan to rob the Theodoulou family, who resided on Staten Island. Defendant was acquainted with the family -- Michael, his wife, Evangelia, and their son, Elenodorous (Lenny) -- because he had worked at the Golden Dove Diner, which they owned and where defendant's brother, Jesse, was the manager.*fn1 Defendant also did some tailoring work for Michael and had been to the home several times, including a visit two weeks before the home invasion.
Torres and DeJesus drove by the family's home two occasions before meeting with defendant at the Golden Dove Diner to plan the robbery. The men decided to use Lenny to gain access to the Theodoulou home. "The plan was to find the kid, get the kid and bring the kid inside the house." Torres and DeJesus drove to the diner and met defendant on the day of the robbery. The three waited for Lenny armed with a Tec-9 and another handgun, duct tape, handcuffs and ski masks.
At approximately 3:00 a.m. on September 16, 1995, Lenny arrived home from a party and parked his car in his neighbor's driveway. Torres claimed that DeJesus grabbed Lenny as he exited the car and forced him back in at gunpoint. Defendant tied him up with duct tape after which the men drove around for a short time. They returned and Torres and DeJesus entered the home with Lenny through the front door, while defendant went around the back. DeJesus was armed, as was defendant.
Torres testified that DeJesus let defendant in the house through the back door. Michael was on the living room couch and Evangelia was ordered down to the living room from upstairs. DeJesus demanded money, but Michael insisted there was no money in the house. The family was taken into the basement where Torres kept watch over them while defendant and DeJesus searched the house. Evangelia's necklace and wedding band were taken from her, along with other jewelry found elsewhere in the house.
DeJesus told the family they were going to take Lenny "for ransom," and Michael claimed he would have the money, "a million dollars or a quarter million" according to Torres, in the morning. Lenny was put in the trunk of the family car, a Mercedes parked in the garage, and DeJesus drove it to Paterson where he met Torres, who drove back separately, at his apartment.
Melton was home, and DeJesus told her to get some breakfast for the two men. As she left the apartment, Melton saw Lenny extricate himself from the trunk of the Mercedes and run off as the car alarm sounded. Torres looked out the window where he saw Lenny running down the street. DeJesus left the apartment and drove the Mercedes around the neighborhood looking for Lenny, while Torres also drove around in DeJesus's BMW. Torres quickly returned to his house, however, frightened over the developments. He and Melton went into the attic and hid as police officers combed the neighborhood.
After his escape and with duct tape still on his body, Lenny ran across the street and asked Thomas Irvolino, who sat in a parked truck, for help, telling Irvolino he was from New York and had been kidnapped. Irvolino was shocked, and pushed Lenny away. Lenny tried to attract attention by ringing doorbells and screaming for help. Almost immediately, police officers Michael Diaz and Robert Guzman of the Paterson Police Department arrived, and Lenny recounted the details of his kidnapping. Together with the officers, Lenny drove around in a vain attempt to find the stolen Mercedes.
Meanwhile, Irvolino saw a Mercedes with New York plates being driven by a Hispanic male who was looking to his left and right down the various side streets. Irvolino suspected this man was searching for Lenny and decided to call the Paterson Police Department. Later that morning, the police recovered the stolen Mercedes.
Shortly after the kidnapping, and even though Lenny had escaped and returned to his home, Torres mailed a note to Michael threatening that Lenny would be kidnapped again unless a ransom was paid. When Michael received the note, Lenny and the rest of the Theodoulou family were in Greece.
Lenny and Evangelia testified in a generally consistent manner about the events, however, their testimony differed from Torres's on critical points. In particular, neither of them ever saw a third man in their home, although both testified they heard a person walking through the house while being held in the basement by the other two men. Even though Torres claimed DeJesus was the first to approach Lenny at gunpoint, Lenny identified Torres, first through a photographic array and later during a line up, as the man who forced him back into his car at the outset of the crime. Michael and Evangelia identified DeJesus from a photographic array and later from a lineup as one of the men in their home on the night in question.
The Englewood Cliffs Incident Sometime in late October of 1995, Torres testified that defendant again approached him and DeJesus in the pool hall with the idea of committing another home invasion. Defendant told them that Mark Urich, the owner of several bagel stores, would be the next target. In preparation, the three men visited Urich's store in Fort Lee and his home in Englewood Cliffs.
On the evening of October 31, 1995, Torres and DeJesus's father drove together to the victim's home, and defendant and DeJesus met them there in a different car. The plan was for defendant and DeJesus, wearing masks and armed with a Tec-9, a second gun and duct tape, to follow Urich into the house upon his return home. Meanwhile, Torres and DeJesus's father were to stay outside and serve as lookouts.
At approximately 2:45 a.m. on November 1, Urich arrived home with a shopping bag filled with the receipts from his stores. He opened his garage from his car, parked and closed the garage door. Before Urich could exit the car, a man with a mask holding a machine-gun-type weapon, who Torres claimed was defendant, appeared at the driver's side window.
The masked man demanded that Urich re-open the garage door. Now out of his car, Urich walked to a door that led into his house that was next to a switch on the wall to open the garage door. Once there, he pushed the garage door button to open the garage door at the same time as he reached down and opened the door to the house an inch or two; this activated the house alarm, which was on a time delay. When the garage door opened, DeJesus rushed in and grabbed Urich. A struggle over defendant's gun ensued, and the bullet clip became dislodged and fell to the floor. When the house alarm began sounding audibly, the two intruders ran out, leaving the injured Urich and the money in the garage. Still in his car, Torres left and drove back to Paterson. Later that night, the four men met outside of Torres's apartment and discussed what had occurred.
Police responded to Urich's house. In the garage, they located the bullets and magazine dislodged from defendant's gun and handcuffs. Expert testimony identified the ammunition as being compatible with a Tec-9. Urich could make no identification of his assailants. Two days later, Urich received two phone calls demanding $250,000 in ransom money, the caller implying that he had information regarding Urich's and his ...