NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued June 10, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-07-2033.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).
Frank J. Ducoat, Deputy Attorney General, attorney for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Ducoat, of counsel and on the brief).
Before Judges Messano, Lihotz and Ostrer.
The Essex County grand jury returned Indictment No. 2009-7-2033, charging defendant Raphael Garland, and co-defendants Tyreese Evans and Ebony Johnson, with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; first-degree armed robbery of Raheem Cottle, N.J.S.A. 2C:15-1; first-degree armed robbery of Donald Mclaurin Green, N.J.S.A. 2C:15-1; first-degree murder of Cottle, N.J.S.A. 2C:11-3a(1) and (2); first-degree felony-murder of Cottle, N.J.S.A. 2C:11-3a(3); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant was subsequently tried alone.
Upon defendant's motion at the conclusion of the State's case, the judge entered judgment of acquittal as to the robbery of Green. See R. 3:18-1. The jury found defendant guilty of conspiracy and first-degree robbery, however, it acquitted defendant of the remaining charges. After merging the two offenses, the judge sentenced defendant to an eighteen-year term of imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.
Defendant raises the following points for our consideration:
[DEFENDANT]'S RIGHT TO CONFRONTATION AND THE RULES OF EVIDENCE WERE VIOLATED BY THE TRIAL COURT'S ADMISSION OF CELLULAR TELEPHONE REPORTS INTO EVIDENCE. U.S. CONST., AMENDS. VI, XIV; N.J. CONST.  ART. 1, PAR[A]. 10. (Partially Raised Below)
A. The Evidence Does Not Satisfy The "Business Record" Exception To The General Ban On Hearsay And Comes Within The Purview Of The Litigation Exception To The "Business Record" Exception To The General Ban On Hearsay.
B. Admission Of The Evidence Violated [Defendant]'s Rights To Confrontation.
THIS MATTER SHOULD BE REMANDED FOR A HEARING PURSUANT TO STATE V. ROACH, 146 N.J. 208 (1996)[, ] BECAUSE A SIMILARLY SITUATED CO-DEFENDANT RECEIVED A DISPARATE SENTENCE. (Not Raised Below)
[DEFENDANT]'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE AND FAILS TO COMPORT WITH THE SENTENCING PRINCIPLES OF NEW JERSEY LAW.
A. The Sentencing Court Inappropriately Found And Weighed Aggravating Factors.
B. The Sentencing Court Considered Inappropriate Information And Failed To Find Mitigating Factors Militating In Favor Of A Lesser Sentence.
C. The Sentencing Court Failed To Adhere To The Principle Of Progressive Discipline In Sentencing [Defendant].
We have considered these arguments in light of the record and applicable legal standards. On the record presented, the judge mistakenly exercised his discretion by admitting certain documents into evidence as "business records." See N.J.R.E. 803(c)(6). Because that error "raise[s] a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached, " State v. R.B., 183 N.J. 308, 330 (2005) (citations omitted) (alteration in original), we are compelled to reverse defendant's conviction and remand the matter for a new trial.
Although our decision turns on the admission of a discrete portion of evidence at trial, we briefly summarize the testimony of the State's witnesses and other evidence adduced to provide context and ...