On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-06-1109.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent, Carchman and Maven.
In these back-to-back appeals, consolidated for purposes of this opinion, defendants Charly Wingate and Kelvin Leerdam seek to overturn their convictions and sentences for kidnapping, robbing, and murdering David Taylor; kidnapping and robbing Allan Plowden; and kidnapping and robbing Giselle Nieves. Wingate argues that his conviction should be reversed because the trial court erroneously declined to sever his trial from Leerdam's trial, misapplied its discretion when it refused to excuse a juror for cause, and improperly instructed the jury. Wingate also argues that the court erroneously denied his motion for a judgment of acquittal, and imposed a manifestly excessive sentence.
Leerdam contends that his conviction should be reversed because at trial the prosecutor failed to fully disclose the State's plea agreement with one of its witnesses, presented unreliable and unduly suggestive in-court identifications, and elicited improper hearsay and perjured testimony. Leerdam also argues that his sentence was excessive.
We affirm the judgment of conviction for each defendant.
The trial evidence presented by the State, including the testimony of co-conspirator Gina Conway, established the following facts. Wingate and Leerdam were twenty-eight and twenty-one years old, respectively, in September 2006. People knew them as brothers, but they may have been step-brothers. Wingate's on-again-off-again girlfriend, Gina Conway, was an exotic dancer at a Bronx club named Sin City. One of the victim's attraction to Conway precipitated the events that culminated in another victim's homicide.
Two of the victims, Allan Plowden and David Taylor, were partners in criminal enterprises that included mortgage, real estate, and credit card fraud. They drove expensive cars around New York City, and Plowden often carried a Louis Vuitton bag containing cash, sometimes as much as $40,000. On September 19, 2006, while in the Bronx, Plowden noticed Conway standing across a street. He introduced himself then took her to a bar where they had a drink. Later, he took her to a hotel in Mahwah, New Jersey, where he unsuccessfully tried to seduce her. Conway left the hotel room at approximately 4:00 a.m. and took a taxi to Sin City where she met Wingate and gave him money, then met a bouncer named Turon Gholston,*fn1 with whom she left.
Two days later, on September 21, the day before the homicide, Plowden phoned Conway, picked her up, and took her shopping in Bergen County. He was carrying the Louis Vuitton bag. During the shopping trip, Conway telephoned Wingate to make him jealous, and told him what she was doing. After shopping, Conway accompanied Plowden to a hotel in Fort Lee. Plowden gave Conway a room key card. During their stay, Plowden opened the designer bag several times to impress Conway, who thought it contained approximately $50,000. Later that night, Plowden drove Conway to Manhattan where he dropped her off.
After dropping Conway off, Plowden met David Taylor and two women, spent the night in a club, and eventually returned to the Fort Lee Holiday Inn where he shared a room with one of the women, Giselle Nieves. Taylor shared a room in the same hotel with the other woman, Maite Castro. Before going to bed, Plowden hid all but $1000 of his cash, as well as his wallet, jewelry, and car keys, under the plastic liner of a trash can. He hid the remaining $1000 under his bed's mattress, and then went to bed while Nieves showered. The crimes were committed in his room later that morning.
Meanwhile, after Plowden dropped off Conway, she took a taxi to a basketball court near 135th Street and Fifth Avenue where she met Wingate and his friends at approximately 11:00 p.m. During the next couple of hours, she took an ecstasy pill and drank some Hennessy Cognac, which made her high, but the degree of her intoxication seemed to rise and fall. She told Wingate about Plowden's money. When he asked how much, she replied "a lot." Wingate then said he was "going to get him," which Conway understood as meaning that Wingate was going to get Plowden's money.
Wingate asked Conway where Plowden was, and she told him Plowden was probably at a club. She also told him where Plowden was staying. Wingate telephoned Leerdam, who arrived a few minutes later and spoke with Wingate. When they finished speaking, Wingate told Conway to go with Leerdam and take him to the hotel where Plowden was staying. According to Conway, Wingate did not intend to use force, but rather intended to steal the money while Plowden was at the club. Shamell Foye, the only witness to testify on behalf of the defense, said he was at the basketball court and saw Wingate and Conway, but not Leerdam.
The group left the basketball court and Leerdam tried to get a car, but he was unable to find one suitable for his purposes. Wingate called the cell phone*fn2 of a taxi driver, Mouhamadou Mbengue, and asked Mbengue to drive his brother and his girlfriend to New Jersey. Mbengue drove Leerdam and Conway to New Jersey, but stopped for gas on the way. While Leerdam went into the store at the gas station, Wingate pulled up in a car and told Conway that if she "pulled it off" he would love her forever.
Mbengue, Leerdam, and Conway arrived at the Fort Lee Holiday Inn at approximately 4:30 a.m., after mistakenly going to two other Holiday Inn hotels. During the journey, three calls were placed from Leerdam's cell phone to the Holiday Inn reservation line. Upon their arrival, Conway spotted Plowden's car and told Leerdam that Plowden had returned. Leerdam told Mbengue to wait and Leerdam and Conway entered the Holiday Inn.
On the way to Plowden's room, Leerdam put on gloves, took duct tape from his pocket, and displayed a handgun. Conway, who had not seen any of these items previously, became nervous because this was not part of the plan. When they arrived at Plowden's room, Leerdam told Conway to use her key card to open the door, but it did not work. Conway called Plowden's cell phone and could hear it ringing, but Plowden did not respond. Conway knocked on the door. Nieves answered, told Conway and Leerdam that Plowden was sleeping, and tried to close the door. Conway used her foot to prevent the door from closing, and she and Leerdam entered the room.
Once inside, Leerdam grabbed Nieves by the hair, pointed the gun at her head, and demanded the money and Plowden's car keys. Conway searched the room. Plowden continued to sleep. Leerdam shoved Nieves into the bathroom and told Conway to tape her up, which Conway did, duct taping Nieves's wrists, mouth, and ankles. Nieves got a good look at Leerdam and noticed a scar on the left side of his face.
Conway woke Plowden; Leerdam told Plowden not to look at him or he would be shot, so Plowden turned away and Conway duct taped his hands and eyes. Plowden told them about the money under the mattress. While Conway and Leerdam searched the room, Plowden, who was on the floor covered by a comforter, was able to lift part of the duct tape from his eyes, peek, and see what was going on. He eventually told Leerdam and Conway that the rest of the money was downstairs in a friend's room. Holding the gun to Plowden's head, Leerdam forced Plowden to call Taylor.
When Taylor arrived at the room, he knocked on the door and Conway opened it. Leerdam stood behind the door with the gun. When Taylor entered, Leerdam pointed the gun at his face, Taylor reached for the gun, it discharged, and Taylor fell dead. According to the Bergen County Medical Examiner who conducted the autopsy, Taylor had stippling*fn3 on his face and two of his fingers, and a gunshot wound in his mouth. Taylor had died from an intraoral gunshot wound to his head and neck.
Conway collected items from the room, including cell phones, a laptop computer, and new clothes that Plowden had purchased the day before. She then went through Taylor's pockets and took $800. Leerdam took Taylor's watch and changed into one of Plowden's shirts and a suit jacket. Leerdam then struck Plowden in the face with the gun; and Conway took Nieves's purse and threatened to kill Nieves and her family. Before leaving, Leerdam and Conway told Plowden they were going to Taylor's room and if the money was not there, they would come back and kill him.
Plowden managed to free himself and chase after Leerdam and Conway. He caught and punched Conway, but when she screamed and Leerdam turned toward him with the gun, he retreated. When Leerdam and Conway returned to Mbengue's car, Mbengue noticed that Leerdam was wearing new clothes. Mbengue drove Leerdam and Conway back to Leerdam's apartment in New York City, where Leerdam phoned Wingate. Conway took a bag containing items stolen from the hotel room and went to Sin City, where she met Gholston and later took a bus with him to his apartment in Bloomfield, New Jersey. She left the bag at his apartment, took another bag, and went to the home of Wingate's sister-in-law. While there, she telephoned Wingate, who said he was sorry for what had happened and would take care of her.
During the ensuing police investigation, Plowden not only failed to identify Leerdam from two photo arrays, but identified the picture of another man the police had used as a "filler." Detectives interviewed Gholston and retrieved the bag that Conway had left at Gholston's house. The bag contained two Holiday Inn key cards, cell phones, a laptop, car keys, clothing, a wallet, and a camera. When detectives arrested Conway, she gave them a statement implicating Wingate and Leerdam.
A Bergen County grand jury charged Wingate, Leerdam, and Conway*fn4 in a twelve-count indictment with first degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); first degree felony murder, N.J.S.A. 2C:11-3a(3) (counts two and seven); first degree robbery, N.J.S.A. 2C:15-1 (counts three, four, and five); second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1b (count six); first degree kidnapping, N.J.S.A. 2C:13-1 (counts eight and nine); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count ten); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b (count eleven). The grand jury also charged Turon Gholston with receiving stolen property, N.J.S.A. 2C:20-7 (count twelve).
The trial court denied defendants' motion for severance, and thereafter a jury acquitted them of count eleven; convicted them of the lesser-included offense of aggravated manslaughter on count one; and convicted them of all other offenses charged in the indictment.
At Wingate's sentencing, after appropriate mergers, the court imposed the following prison terms: on count two (felony murder), forty years with an eighty-five percent period of parole ineligibility and five years of supervision upon release under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; fifteen years subject to NERA on count three (robbery of Plowden) concurrent to count two; fifteen years subject to NERA on count four (robbery of Nieves) concurrent to count two and consecutive to count three; twenty years subject to NERA on count eight (kidnapping Plowden) concurrent to counts two and three; and twenty years subject to NERA on count nine (kidnapping Nieves) concurrent to counts two and four, and consecutive to count eight. The court also imposed appropriate assessments and fined Wingate $50,000.
As to Leerdam, the court imposed the same sentence with two exceptions; it sentenced Leerdam to life imprisonment on count two, and imposed no fines.
We begin with Wingate's arguments. In his original brief, Wingate argues:
POINT I THE TRIAL COURT MISAPPLIED ITS
DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ON COUNTS TWO, THREE, FOUR, EIGHT, AND NINE, BECAUSE THE STATE ONLY PRODUCED SPECULATIVE EVIDENCE THAT THE DEFENDANT HAD THE INTENT TO PARTICIPATE IN A ROBBERY [of] ALLAN PLOWDEN, AND AIDED CO-DEFENDANTS LEERDAM AND CONWAY IN THE SHOOTING AND ROBBERY OF DAVID TAYLOR AND THE KIDNAPPING OF GISELLE NIEVES AND ALLAN PLOWDEN.
POINT II THE DEFENDANT'S CONVICTIONS SHOULD
BE REVERSED BECAUSE THE TRIAL COURT MISAPPLIED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO PEREMPTORY CHALLENGE BY DENYING TRIAL COUNSEL'S MOTION TO EXCUSE JUROR NUMBER 4.
POINT III THE JURY CHARGE WAS PREJUDICIALLY
DEFECTIVE BECAUSE THE TRIAL COURT FAILED TO PROVIDE ADEQUATE GUIDANCE TO THE JURY AS TO HOW TO ASSESS ACCOMPLICE LIABILITY (NOT RAISED BELOW).
POINT IV THE TRIAL COURT MISAPPLIED ITS
DISCRETION IN FAILING TO SEVER THE DEFENDANT'S TRIAL FROM CO-DEFENDANT LEERDAM (RAISED IN PART BELOW).
EVIDENCE WHICH PERTAINED SOLELY TO CO-DEFENDANT LEERDAM WAS SO DISPARATELY GREATER THAN THE EVIDENCE WHICH PERTAINED TO THE DEFENDANT TO HAVE JUSTIFIED SEVERANCE (RAISED IN PART BELOW).
THE TRIAL COURT ERRED IN FINDING THAT THE LEVEL OF ANTAGONISM BETWEEN THE DEFENDANT AND CO-DEFENDANT LEERDAM DID NOT WARRANT SEVERANCE.
POINT V THE AGGREGATE 40 YEAR BASE
CUSTODIAL SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF JUDICIAL DISCRETION.
IMPOSITION OF BASE SENTENCES IN EXCESS OF THE STATUTORILY AUTHORIZED MINIMUM 30 YEAR SENTENCE ON THE DEFENDANT'S CONVICTION FOR FELONY MURDER ON COUNT TWO, AND IN EXCESS OF THE STATUTORILY AUTHORIZED MINIMUM 10 YEAR SENTENCES ON THE DEFENDANT'S CONVICTIONS FOR ROBBERY AND KIDNAPPING ON COUNTS THREE, FOUR, EIGHT, AND NINE, CANNOT BE SUPPORTED BY QUALITATIVE ANALYSIS OF THE AGGRAVATING AND MITIGATING FACTORS PRESENT.
CONSECUTIVE TERMS ON THE DEFENDANT'S CONVICTIONS FOR ROBBERY AND KIDNAPPING SHOULD NOT HAVE BEEN IMPOSED.
THE TRIAL COURT FAILED TO TAKE INTO CONSIDERATION THE "REAL TIME" CONSEQUENCES OF THE MANDATORY NERA ...