On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-12-2152.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Baxter and Nugent.
Tried jointly in a twenty-one day jury trial in September, October and November 2008, defendants Jose Vega and Juan Rosario were convicted of the slaying of Ralph Pinto and the attempted kidnapping of his friend Paul Ricciardi. The State's proofs established that both defendants were members of the gang known as the Latin Kings; and that in retribution for Pinto and Ricciardi robbing and beating defendant Vega after he sold Pinto and Ricciardi baking powder instead of cocaine, defendants ordered lower-ranking members of their gang to lure Pinto and Ricciardi to a location in Lodi, where Pinto was ultimately killed and Ricciardi was beaten.
On January 23, 2009, the judge sentenced defendant Vega as follows: for his conviction on the second-degree charge of reckless manslaughter for the slaying of Pinto, N.J.S.A. 2C:11-4(b)(1), to a ten-year term of imprisonment subject to the eighty-five percent parole ineligibility term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 (count one, as a lesser included offense of first-degree murder); for the second-degree attempted kidnapping of Pinto, N.J.S.A. 2C:13-1(b) and 2C:5-1, to a concurrent ten-year NERA term (count four); for the second-degree attempted kidnapping of Ricciardi, N.J.S.A. 2C:13-1(b) and 2C:5-1, to a ten-year NERA term, consecutive to count one (count five); for the disorderly persons offense of simple assault on Ricciardi, N.J.S.A. 2C:12-1(a), to a concurrent six-month term of imprisonment (count seven, as a lesser included offense of second-degree aggravated assault); for second-degree aggravated assault, attempting to cause serious bodily injury to Ricciardi and Pinto, N.J.S.A. 2C:12-1(b)(1), to a ten-year NERA term, consecutive to counts one and five (count thirty-one); for third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), to a concurrent five-year term of imprisonment, subject to a two and one-half year period of parole ineligibility term (count thirty-three); for third-degree distribution of cocaine (CDS), N.J.S.A. 2C:35-5(a), to a concurrent five-year term of imprisonment, with a two and one-half year parole ineligibility term (count thirty-four); for second-degree distribution of cocaine, N.J.S.A. 2C:35-5(b), to a ten-year term of imprisonment, with a five-year parole ineligibility term, consecutive to counts one, five and thirty-one (count thirty-five); for fourth-degree distribution of marijuana, N.J.S.A. 2C:35-5(a), to a concurrent eighteen-month term of imprisonment (count thirty-six); and for third-degree distribution of marijuana, N.J.S.A. 2C:35-5(a), to a concurrent five-year term of imprisonment (count thirty-seven). The judge merged defendant's convictions for attempted kidnapping, possession of cocaine, possession of marijuana and possession of a weapon for an unlawful purpose. Defendant Vega's aggregate sentence was a forty-year term of imprisonment, subject to a thirty and one-half year parole ineligibility term.
On the same day, the judge sentenced defendant Rosario, who had been convicted of the same crimes and offenses as defendant Vega on counts one, four, five, seven and thirteen. The judge imposed a ten-year NERA term on count one; a ten-year concurrent NERA term on count four; a consecutive ten-year NERA term on count five; and a six-month concurrent term of imprisonment on the charge of simple assault, for an aggregate sentence of twenty years, subject to a seventeen-year parole ineligibility term. The judge merged Rosario's conviction on count thirteen for conspiracy to commit kidnapping with the sentence on count four.
On appeal, defendant Vega raises the following claims:
I. IT WAS ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S NOTICE OF MOTION FOR SEVERANCE AND TO PERMIT ADMISSION OF THE PENALBA EVIDENCE.
II. IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO DENY DEFENDANT'S MOTIONS FOR MISTRIAL.
III. THE TRIAL COURT ERRONEOUSLY ALLOWED IMPROPER AND INADMISSIBLE EVIDENCE.
IV. REPEATED REFERENCES THROUGHOUT THE TRIAL TO THE ALMIGHTY LATIN KING AND QUEEN NATION AND THE TESTIMONY OF THE GANG EXPERT DEPRIVED DEFENDANT OF A FAIR TRIAL.
V. THE LIMITATION ON THE CROSS-EXAMINATION OF THE GANG EXPERT INFRINGED UPON DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AND HIS RIGHT TO A FAIR TRIAL.
VI. THE EXTREME SECURITY MEASURES EMPLOYED AT DEFENDANT'S TRIAL VIOLATED HIS RIGHT TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY.
VII. THE FAILURE OF THE COURT TO PROVIDE PROPER AND ACCURATE INSTRUCTIONS TO THE JURY DENIED THE DEFENDANT A FAIR TRIAL.
VIII. CERTAIN STATEMENTS MADE BY THE PROSECUTOR IN SUMMATION WERE GROSSLY PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL.
IX. THE DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL WAS ERROR.
X. THE COURT ERRED IN NOT MERGING CERTAIN OFFENSES AT SENTENCING.
XI. THE EXCESSIVE SENTENCE IMPOSED UPON MR. VEGA SHOULD BE MODIFIED AND REDUCED (Not Raised Below).
XII. THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL
On appeal, defendant Rosario raises the following claims:
I. EXTENSIVE AND GRAPHIC OTHER-CRIMES EVIDENCE, ADMITTED WITHOUT A PROPER LIMITING INSTRUCTION, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL, NECESSITATING THE REVERSAL OF HIS CONVICTIONS.
II. THE GANG EXPERT EVIDENCE ADMITTED IN THIS CASE WAS AN IMPROPER DIRECT OPINION ON THE ISSUE OF DEFENDANT'S GUILT IN AN AREA THAT WAS NOT BEYOND THE KEN OF THE AVERAGE JUROR.
III. THE TRIAL COURT'S DECISION TO BAR THE DEFENSE FROM CROSS-EXAMINING DETECTIVE CHRISTIANA ABOUT WHETHER "SNITCHES" ALWAYS TELL THE TRUTH WAS ERROR REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS.
IV. THE JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE PROCEEDINGS.
V. THE EXTREME SECURITY MEASURES EMPLOYED AT DEFENDANT'S TRIAL VIOLATED HIS RIGHT TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY.
VI. THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).
VII. THE COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We consolidate the two appeals for purposes of disposition, and affirm the conviction and sentence of each defendant.
On February 17, 2005, Pinto and Ricciardi, who were small- time drug dealers in Passaic, accompanied by J.P.,*fn1 went to the home of defendant Vega to purchase marijuana and crack cocaine. Vega had been their supplier for several months. When they arrived at Vega's home, J.P. remained in Ricciardi's truck while Pinto and Ricciardi accompanied Vega upstairs. As Vega was weighing the drugs, Ricciardi and Pinto observed a "bunch of money and drugs" in Vega's safe. While returning to Ricciardi's truck after they purchased the marijuana and cocaine from Vega, Pinto suggested robbing Vega and stealing the contents of his safe. Initially, Ricciardi said no, but reconsidered when Pinto reminded him that a few weeks earlier Vega had sold him baking soda instead of cocaine, and had refused to reimburse him. Ricciardi, feeling "disrespected," reconsidered and agreed to go along with Pinto's suggestion of robbing Vega.
Pinto, Ricciardi and J.P. purchased a piece of steel pipe to use against Vega, and returned to Vega's home after arranging to purchase some additional cocaine. As he had the first time, J.P. remained in the truck, while Ricciardi and Pinto went inside. As Vega bent over the scale to weigh the cocaine, Pinto pulled out the pipe and hit Vega in the head. When Vega demanded to know why, Pinto responded, "you know why."
Ricciardi grabbed Vega's safe and its contents, while Pinto took Vega's gold and diamond necklace as the two left Vega's house. Outside, as Pinto and Ricciardi were about to enter Ricciardi's truck, Vega emerged from the house and fired three shots at the three while they fled.
Almost immediately, Ricciardi began receiving repeated cell phone calls from both defendants. He let most of the calls go to voicemail, but answered a few because he recognized the phone number. In one of the calls, Vega told Ricciardi that he "better bring my sh-t back. Just drop it on the porch and nothing will happen to you." In another call, however, Vega told him "Yo, you better bring my stuff back or you're going to get hurt." During the course of one of the phone calls, Vega referenced "East 24th," which Ricciardi understood as a reference to where Ricciardi lived, East 24th Street. In total, Ricciardi received approximately twenty to thirty threatening phone calls from Vega, and the same number from Rosario.
Shortly after being robbed and beaten by Pinto and Ricciardi, Vega contacted his cousin Joseph Marti, as well as Latin Kings gang members -- Ernesto Vargas, Juan Veras, Edward Scott, Jamel Rose and Oscar Giorgi*fn2 -- and instructed them to come to his home immediately. When they arrived, they saw Vega, bleeding from the back of his head, limping and visibly angry. Vega explained that he had been robbed and assaulted by Pinto and Ricciardi, who took his safe, his chain, money and drugs. The discussion turned to how to find and capture Pinto and Ricciardi.
Giorgi took Vega to the hospital. The others remained at the house, discussing with defendant Rosario, who had recently arrived, how they could find Pinto and Ricciardi. According to Vargas, he and the others "were supposed to snatch them up, bring them back to [Vega's] house," at which point someone would "[b]eat them up. Kick their but[t]s, break some legs." The assembled gang members "switched around" Rosario's .38 caliber revolver and Vega's automatic .45 firearm, which Vega had used to shoot at Pinto and Ricciardi after the robbery.
Miguel Medina, who had been a probationary member of the Latin Kings for approximately one month at the time, confirmed that Rosario was giving the orders, and described the plan to apprehend Pinto and Ricciardi as follows:
At that moment in particular there was no discussion as to what was going to happen as a result of the robbery. It was mainly trying to track these guys down, see if we could find them. Basically try to get the stuff back and see, you know, if anything [sic] we could get a contact to these guys because, you know, they basically had to pay for what was done.
Medina also heard Rosario on his cell phone telling either Pinto or Ricciardi to "'bring the sh-t back. I want the sh-t back. Bring the necklace back or else I'm going to fu-kin' kill you.'"
Vega, who by then had returned home from the hospital, told the assembled group that if they were able to find Pinto, they should bring the "mother fu-ker" back to him because he wanted to be the one to shoot him in the head. The gang members' efforts to find Pinto and Ricciardi on February 17, 2005 were unsuccessful, but the next day Marti arranged to meet Pinto and Ricciardi in Lodi where Pinto would sell Marti some marijuana. The plan involved Veras and Rose meeting Pinto and Ricciardi and getting into Ricciardi's pickup truck. Once in the truck, Veras would tell Pinto and Ricciardi that he did not have enough money, and would ask Ricciardi to drive him to the Cedar Wrights Gardens Complex, known as "the Village," so he could obtain more cash.
Meanwhile, Vega would drive Vargas and Marti to the scene while Monica Penalba, a friend of Veras's, whom Veras called to help them in their plan to apprehend Pinto and Ricciardi, would drive Scott and Giorgi in her vehicle. Once Ricciardi and Pinto arrived in Ricciardi's truck, Penalba would pull her car behind it to prevent an escape. At that point, Scott and Giorgi would attack Ricciardi, while Vargas and Marti would go after Pinto. Before they left the house, Vargas gave Veras one of the two guns and Vargas took a hammer.
Ricciardi drove, with Pinto in the passenger seat, to the pre-arranged location in Lodi where he pulled his truck into an alley. Veras and Rose were standing by the curb. As soon as Veras and Rose entered Ricciardi's truck, Veras instructed Ricciardi to drive to the Village because he, Veras, did not have enough money. Once the truck and its occupants reached the location where Vargas and Penalba were waiting, Veras touched the "alert" button on his phone, letting Vargas know that he and Rose were in position, at which point Penalba, as agreed, drove her vehicle into position, while Vega's brother Anthony positioned his vehicle behind Ricciardi's truck. Several gang members hit Pinto in the head several times with a hammer. Veras shot him five times in the side and back. Pinto did not survive that attack. Ricciardi, who had been beaten but not shot, was able to survive. Ricciardi provided the police with a statement describing his and Pinto's robbery of Vega as well as its aftermath. Neither Vega nor Rosario was present when Pinto was shot and Ricciardi was beaten.
An hour or so later, Penalba drove Vargas to Passaic, where Vargas and defendant Rosario discussed the role of each of the participants. Penalba explained what she saw and proudly described her role. Rosario instructed Vargas to assist Penalba in cleaning the blood from her car, while several other gang members who were present drove to Vega's home to report the night's events. When defendant Rosario explained that Pinto had been "taken care of," defendant Vega responded "fu-k him." Later that evening, after some discussion about Penalba's involvement in the plan, and the risk that Penalba might disclose to third parties what had occurred, Medina looked at Rosario and gestured "what's up?" Defendant Rosario did not answer, but made a gesture of a hand across the throat, which Medina interpreted to mean that someone was going to get hurt. Although Medina and another gang member, Nowin Tejera, declined to kill Penalba, Russell Aquino volunteered to do so.
As Penalba leaned into the rear seat of her car to clean the blood, Aquino and another gang member stabbed her more than thirty times. Despite being stabbed, Penalba was able to jump out of her car. Seeing this, another participant, Veanzeil Roberts, backed up and drove over Penalba several times. Roberts later told defendant and Veras, "yeah, we took care of her," and explained how he and Aquino had stabbed Penalba several times before driving her own car over her after she jumped out of it. When police officers responded to the scene, Penalba, who survived the brutal attack, reported that Aquino had stabbed her.
Eventually, detectives interviewed and arrested sixteen individuals involved in the Lodi shooting and the attack on Penalba, but were unable to find Rosario or Vega.
On February 19, 2005, at approximately 4:40 a.m., defendant Vega arrived at Lodi police headquarters where he was interviewed by Detective Russell Christiana of the Bergen County Prosecutor's Office. Detective Christiana knew that Vega had been robbed by Ricciardi and Pinto, and that Vega had chosen not to file a complaint. When the detective asked Vega, whose leg was in a brace, how he sustained that injury, Vega claimed to have tripped and fallen down the stairs. Defendant denied any knowledge of the Lodi shooting.
When Detective Christiana told Vega he did not believe him, and informed Vega that he, Christiana, had already spoken to defendant's brother Anthony, defendant sighed, and said, "okay, I'll tell you the truth." He admitted to being robbed by Pinto and Ricciardi, but denied being a drug dealer, denied firing a weapon at Pinto and Ricciardi when they fled, and denied that the shooting death of Pinto was in retaliation for the robbery.
A few days later, on February 24, 2005, defendant Rosario came to the Passaic police department and agreed to speak to detectives. After detectives advised him that he was under arrest for the murder of Pinto and the attempted murder of Penalba, Rosario initially claimed to know nothing about Pinto's death other than what he read in the newspaper. After further questioning, and after being told that other Latin Kings had implicated him in the crimes, Rosario, who admitted to being a lifelong Latin King, stated that everyone who snitched would get "touched" in jail. As for the other people involved in the crimes, Rosario vowed to go to trial where he would be able to observe every "snitch" who testified. Rosario promised that each one would get "a piece of metal in their ass," and he assured the detectives that he had people in every jail willing to do so. The police arrested both defendants.
The State sought to try Vega and Rosario jointly for their roles in the murder of Pinto and the attempted kidnapping and assault of both victims. The State also sought to try Vega for narcotics, weapons and assault charges in connection with the earlier robbery incident. Finally, the State sought to use Rosario's participation in the attempted murder of the non-gang accomplice Penalba, as evidence of Rosario's consciousness of guilt for the murder of Pinto. Although the State charged Rosario, and only Rosario, with the attempted murder of Penalba, the State announced its intention to sever the Penalba counts for a later trial.
Each defendant moved to sever his trial from the other. The judge denied the motion, but limited the use of the evidence relating to the attempted murder of Penalba. The judge reasoned that both defendants should be tried together because the conspiracy, murder, kidnapping and assault charges contained in counts one through fourteen arose from the same conspiracy or series of acts, and each defendant's actions were "inextricably linked" to the aborted kidnapping and robbery that resulted in Pinto's death. The judge also reasoned that although each defendant had provided a statement to police, each statement implicated only the declarant and not the other defendant.
Additionally, the judge held that the drug distribution charges contained in counts thirty through thirty-nine of the indictment, which involved only defendant Vega, should not be severed for a separate trial. The judge reasoned that Vega's sale of narcotics to Pinto and Ricciardi on February 18 enabled them to see Vega's large quantity of cash and narcotics, which led to the later robbery and to the ensuing retaliation by defendants. For that reason, the judge concluded that the robbery of Vega, and Vega shooting at Pinto and Ricciardi on February 17, were inextricably intertwined with the violent events on February 18, and should therefore not be severed.
Finally, the judge concluded that the evidence relating to counts eighteen through twenty-two, which involved the conspiracy to kill Penalba, was relevant to defendant Rosario's involvement in Pinto's murder, as Rosario's concern that Penalba might disclose to law enforcement the details of the attack on Pinto and Ricciardi, served as proof of Rosario's involvement in their kidnappings and in Pinto's murder.
After concluding that separate trials would not promote judicial economy, the judge acknowledged the possible prejudice to Vega from being tried with Rosario. The judge determined that issuing appropriate limiting instructions to the jury -- directing them to consider the Penalba evidence against Rosario, but not against Vega -- would eliminate any possible prejudice to defendant Vega.
In another pretrial ruling, the judge granted the State's motion to present expert testimony from Lieutenant Keith Bevacqui, an assistant bureau chief in the organized crime section of the New Jersey State Police, on the organization of street gangs in general, and the Latin Kings in particular. The judge concluded that jurors could not be expected to be familiar with gang structures and organizations, and that expert testimony on the Latin Kings' organization, and manner in which the gang functioned, would be helpful to the jury in its fact-finding responsibilities. The judge also concluded that the expert testimony to be provided by Bevacqui would not be unfairly prejudicial because evidence of defendants' involvement in the gang, and how the gang functioned, did not directly bear upon defendants' participation in the crimes charged.
Bevacqui's testimony began with his comment that his opinions were based upon his review of fifty documents, including photographs, club letters, the Latin Kings' Manifesto, as well as his own experience in other Latin King cases. He explained to the jury that the Latin Kings organization was established in Chicago in 1940 and had subsequently spread to more than thirty states including, in 1994, New Jersey. According to Bevacqui, the Latin Kings were organized around an identical hierarchical structure in each state, involving five numbered "crowns."
According to Bevacqui, defendant Vega held the highest gang position in the State of New Jersey, and defendant Rosario was also in the upper echelons of the New Jersey Latin Kings organization. Bevacqui explained that in gangs such as the Latin Kings, "violent acts are worn like a badge of honor," and retaliations serve as an important tool for acts of disrespect committed against gang members. Based upon his experience and training, Bevacqui opined that to insulate themselves from the risks of being charged with criminal activity, the leaders of a gang's chain of command would typically not be present during the commission of a kidnapping or murder. Instead, such tasks were committed by lower-ranking gang members, who were expected to follow orders. Bevacqui also explained that lower-ranking gang members, who take part in the murder and kidnapping of targeted victims, are expected to contact their superiors in the chain of command and advise the superiors of what transpired, so that the higher-ranking gang member would "know the order was fulfilled and carried out."
Bevacqui opined that Rosario's statement -- that Rosario had members of the Latin Kings in various prison facilities around the State who were prepared to retaliate against "snitches" -- was consistent with gang activity in organizations such as the Latin Kings. Ultimately, he opined that all of the activity alleged in the indictment was "clearly gang related" and consistent with New Jersey's Latin Kings.
We begin our analysis by addressing points that are raised by both
defendants. In Rosario's Point I, and Vega's Point III, defendants
argue that the admission of evidence regarding the
attempted murder of Penalba was unfairly prejudicial and that the
limiting instruction the judge issued was inadequate.*fn3
In particular, defendant Vega asserts that because he was not
charged in the attempted murder of Penalba, the admission of such
evidence against co-defendant Rosario denied Vega a fair trial,
especially because, according to Vega, the limiting instruction was
vague and insufficient. Rosario, for his part, argues that combining
the charges dealing with the attempted murder of Penalba, with the
charges involving the murder of Pinto, was unfairly prejudicial; and
that the prejudice was exacerbated by the judge permitting the State
to introduce graphic evidence of the injuries Penalba sustained.
Before granting the State's motion to introduce against defendant Rosario the evidence pertaining to the attempted murder of Penalba, Judge Roma conducted a hearing outside the presence of the jury during which he applied the standards articulated in N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328, 338 (1992). Although N.J.R.E. 404(b) prohibits the State from introducing evidence of other crimes to prove the disposition of a defendant to engage in unlawful behavior, the Rule expressly provides that other crimes evidence may be admitted for other purposes "when such matters are relevant to a material issue in dispute." Evidence is "relevant" when it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401.
When ruling upon the State's motion to admit other crimes evidence pursuant to N.J.R.E. 404(b), the judge must ensure that the other crimes evidence is material to a matter in dispute, is similar in kind and reasonably close in time to the offense charged, is clear and convincing, and possesses probative value that is not outweighed by its potential for prejudice. Cofield, supra, 127 N.J. at 338. We review such decisions for an abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011).
Post-crime conduct is admissible when offered to show a defendant's mental state when the post-crime conduct demonstrates consciousness of guilt. State v. Williams, 190 N.J. 114, 125 (2007). So viewed, the evidence concerning the attempted murder of Penalba at the behest of defendant Rosario was properly admitted for the limited purpose of showing his state of mind concerning his role in the murder of Pinto and the attempted kidnappings of Pinto and Ricciardi. We agree with Judge Roma's conclusion that from the evidence presented, the jury could have concluded that Rosario was concerned that Penalba was loose-lipped and that she might reveal to others, or to the police, the details of Rosario's involvement in the crimes against Pinto and Ricciardi. We also concur in the judge's conclusion that the evidence involving the attack on Penalba illustrated the lengths to which Rosario was prepared to go to conceal his role in the attempted kidnappings and murder, and that he had ...