NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued(A-4500-09T4)/Submitted(A-4509-09T1) October 26, 2011 — Decided February 14, 2012.
Remanded by Supreme Court July 18, 2012.
Re submitted July 19, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-09-3185.
Stephen P. Kernan, attorney for appellant Esterlin M. Torres.
John P. Morris, attorney for appellant Jonathan Torres.
John J. Hoffman, Acting Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).
Before Judges Axelrad, Sapp-Peterson and Ostrer.
This matter is before us on remand from the Supreme Court. We affirmed the convictions of defendants Jonathan and Esterlin Torres. State v. Esterlin M. Torres and Jonathan Torres, No. A-4500-09 and A-4509-09 (App. Div. Feb. 14, 2012). After allowing defendants to expand the record on appeal, we decline to reconsider our February 14, 2012 opinion.
Pending filing of his petition for certification, Jonathan moved before the Supreme Court for permission to expand the record on appeal, to include:
(a) the 17 notes from the jury, during its deliberations, to the trial judge; (b) Exhibits S-27 and S-38 [recordings of prior statements of witnesses]; and (c) certified copies of the Clerk's 7 page log of the trial proceedings, the certified Exhibit List (2 pages) and the certified jury selection sheet (1 page) with separate submission of pre-sentence report[.]
Jonathan also sought permission "[t]o correct the Appendix documents submitted on behalf of Defendant/Appellant Jonathan Torres with substitution of the correct Camden County Indictment [09-09-3185] and certified copies of the trial judge's verdict sheet and the foreperson's marked up verdict sheet[.]" In the alternative, Jonathan asked the Court to remand the case to us for our "consideration in light of the corrected and augmented appellate record."
In support of the motion, Jonathan's new attorney asserted that former appellate counsel for both defendants omitted, on their appeal to us, transcripts of four days of trial — February 25 and 26, and March 1 and 2, 2010 — when the jury deliberated, asked questions, and received further instructions. Counsel asserted that the missing transcripts were needed to evaluate whether the trial court complied with the guidelines in State v. Burr, 195 N.J. 119 (2008) pertaining to jury access to recordings admitted into evidence.
Counsel also argued that the trial court committed error by using a dictionary definition of "substantial" in response to a jury question regarding the elements of kidnapping, during the proceedings of March 3, 2010, for which transcripts had been obtained before our decision. Counsel argued that defendants' former appellate attorneys were ineffective in failing to raise that issue.
Jonathan's counsel also stated that he discovered that the jury foreman's verdict sheet — which his predecessor did not possess and which was not marked as a court exhibit — reflected that the jury reached a verdict on a lesser included offense that it was not required to address. The jury found defendants guilty of three counts of second-degree kidnapping involving three victims. Consequently, the judge did not orally inquire regarding the lesser included offenses of criminal restraint and false imprisonment. However, the jury's verdict sheets reflect that the jury nonetheless reached the issue of criminal restraint and found defendants guilty. The verdict sheets reflect the jury also unanimously found defendants guilty of false imprisonment of Robert Agurs. The verdict sheets regarding the charge of false imprisonment of Fabian Muniz and Lorena Grimaldo are unclear as only the foreman's initials are inserted on the "Guilty" line.
Finally, counsel noted that fourteen minutes of the court's jury instructions, when the court apparently discussed suggested unlawful purposes of defendants' possession of a firearm, were not recorded because of a malfunction in the recording system. Counsel argued, "Appellate issues are implicated as to the propriety of the [c]ourt's instructions as well as whether merger is mandated[.]" Esterlin joined in Jonathan's application.
By order entered July 18, 2012, the Supreme Court partly granted defendants' motion for a remand "to permit the Superior Court, Appellate Division, to consider and decide movant's motion to expand the record and, thereafter, to decide whether to reconsider its opinion." The Court recognized our authority "to order a further remand to the trial court to settle the record." The Supreme Court dismissed defendants' notice of appeal and petition for certification, and dismissed as moot their motion to the Supreme Court to expand the record.
After we received the Court's order, we advised defendants, by letter dated September 13, 2012, that in view of the passage of time, they could supplement their motions. We presumed defendants, during the intervening time period, may have acquired some of the documents they were seeking when they filed their motion with the Supreme Court.
Jonathan's counsel responded on September 27, 2012, by providing us with the 146-page appendix it submitted to the Supreme Court in support of its motion to the Court; and the four days of omitted transcripts. In addition to asking us to grant his request to expand the appellate record, Jonathan requested permission to present ...