NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 4, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-01-0102.
Susan Remis Silver, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, of counsel and on the brief).
Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Kmieciak, of counsel and on the brief).
Before Judges Graves, Ashrafi, and Espinosa.
In a four-count indictment, defendant Giancarlo Bonilla was charged with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); and first-degree murder, N.J.S.A. 2C:11-3(a)(2) (count four). Following a jury trial, defendant was acquitted of count four but convicted of the remaining counts.
At sentencing on March 25, 2011, the court identified three aggravating factors: the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. After merging counts one and two into count three, the court sentenced defendant to life imprisonment, with thirty years of parole ineligibility pursuant to N.J.S.A. 2C:11-3(b)(1), and an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant presents the following arguments on appeal:
THE TRIAL COURT DEPRIVED THE DEFENDANT OF HIS CONFRONTATION RIGHTS UNDER THE FEDERAL AND STATE CONSTITUTIONS WHEN THE TRIAL JUDGE REFUSED TO ALLOW THE DEFENDANT TO IMPEACH STATE WITNESSES WITH EVIDENCE SHOWING THEIR BIAS AND MOTIVE TO LIE.
THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS WHEN IT INSTRUCTED THE JURY THAT IT COULD IMPEACH THE DEFENDANT'S CREDIBILITY BY CONSIDERING HIS PRETRIAL SILENCE TO LAW ENFORCEMENT AUTHORITIES.
THE TRIAL JUDGE IMPROPERLY INFLUENCED THE JURY AND DENIED DEFENDANT A FAIR TRIAL WHEN THE JUDGE CROSS-EXAMINED THE DEFENDANT AND QUESTIONED HIS CREDIBILITY BEFORE THE JURY.
THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR CONSPIRACY AND ROBBERY, THE PREDICATE OFFENSES FOR HIS FELONY MURDER CONVICTION, AND THE DEFENDANT SHOULD HAVE BEEN ACQUITTED ON ALL COUNTS. (NOT RAISED BELOW).
DEFENDANT'S LIFE SENTENCE IS EXCESSIVE AND BASED ON AN OFFENSE FOR WHICH THE JURY ACQUITTED DEFENDANT, AND THE SENTENCE IS CONFUSING AND POTENTIALLY ILLEGAL. (NOT RAISED BELOW).
We have considered these arguments in light of the record and the applicable law and affirm.
The facts are relatively straightforward. On May 17, 2009, the day of the incident, defendant was an inmate at Delaney Hall, a housing facility associated with the Essex County jail. The victim, Derek West, Vincent Caputo, and Ibin Goodman and Luis Gonzalez, two co-defendants who are not parties to this appeal, were also inmates at Delaney Hall.
The rooms in Delaney Hall are organized like a dormitory, with several bunk beds in each room. At trial, Caputo testified he overheard Goodman speaking with Gonzalez about robbing West. On cross-examination, Caputo testified, "I didn't know Bonilla was involved. I mean I didn't see him. I didn't see anybody go in the room, so I don't know who did what."
Gonzalez testified as a State's witness pursuant to a plea agreement, in which the State agreed to recommend that he "serve no more than eight years in custody" for conspiracy, robbery, and felony murder. Gonzalez confirmed the plan to rob West for "some cigarettes and some money":
[It] was me, [Goodman], [defendant], we was in Delaney Hall. Me and [defendant] was in the same room. I believe [Goodman] came in the room and he said he had a . . . scheme for some cigarettes and some money. I said, "All right, come on, let's go."
Me, [Goodman], and [defendant] went into the [room] . . . . [Goodman] went and talked to [West]. . . . He came up with some change and the dude tried to run. I booty bumped him so he wouldn't get out the door. That's when [defendant], he started choking him. [Defendant] started choking him and said, "Check, start searching." We start searching. We wind up falling on the floor with the dude while he was choking him and once he finished choking him, we all ran out. Gonzalez denied the three men planned to murder West:
[Q.] Mr. Gonzalez, do you admit freely that you agreed with Mr. Goodman and Mr. Bonilla to rob Derek West of whatever money he had that day?
[A.] Yes, sir.
[Q.] That was your plan?
[Q.] Was it your plan that he should be choked to death?
[A.] No, sir.
[Q.] Who choked Derek West to death?
On cross-examination, defense counsel asked Gonzalez if he was "a gang member, " and the State objected. At side bar, defense counsel argued that Goodman and Gonzalez named defendant as the primary attacker because they were "in a gang together" and defendant was "not in the gang." However, the court sustained the objection, reasoning as follows:
[Defense counsel] seeks to elicit from Mr. Gonzalez the fact that he is a gang member. . . . It has nothing to do whatsoever with this alleged murder.
[Counsel] advised the court that he seeks to establish the fact that Gonzalez and Goodman were gang members and Mr. Bonilla was not a gang member and therefore [counsel] says the jury can draw inferences that . . . they are lying about Mr. Bonilla because he wasn't a gang member.
There is not a scintilla of evidence in this record to establish that proposition. In order to draw an inference [there] has to be [a] fundamental rudimentary fact. . . .
There's no such fact in this record to draw an inference that in fact gang membership was the motive for Mr. ...