Opinion
DOCKET NO. A-4622-12T2
04-27-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAFAEL A. LABOY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-08-1738. Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
A jury found defendant Rafael A. Laboy guilty of first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; third-degree aggravated assault, N.J.S.A. 2C:12-1b(1), as a lesser-included offense of second-degree aggravated assault; and theft of a motor vehicle, N.J.S.A. 2C:20-3a. The judge granted the prosecution's motion for a discretionary extended term and, after merging defendant's convictions for sentencing purposes, sentenced defendant to a forty-year extended term of imprisonment on the first-degree robbery count, subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals his conviction and sentence. We affirm.
Relying on the statement of defendant's cousin, co-defendant Eddie Laboy, the State contended the two stole a Chevy Lumina in Massachusetts, intending to drive it to Florida. When the car broke down on the Garden State Parkway in Tinton Falls, the men abandoned it and went in search of another. Coming upon the victim's house in a heavily wooded area nearby, the men knocked at his door in the early evening asking to use the telephone. The victim declined to let them in but offered to call someone on their behalf. They refused and walked off.
The men hid in nearby bushes until sometime after 2:00 a.m. They then returned to the victim's house, kicked in his door and savagely beat him while demanding his car keys. The victim told the state troopers who responded to his 9-1-1 call that he recognized the pair as the men who had knocked at his door earlier in the evening.
The cousins took the victim's car and continued on their trip to Florida. Police in Homestead, Florida encountered defendant there a week after the robbery. Several days later, police found the victim's car abandoned in Miami. Because New Jersey police processing the abandoned Lumina matched a fingerprint found on a Massachusetts Turnpike receipt in the car to defendant, they asked the Miami police to put together a photo array including defendant's picture. When New Jersey police presented the array to the victim, he pointed to defendant's photo and said, "that's the one that kicked my butt."
Eddie Laboy entered a plea and provided the detailed statement on which the State relied at trial. Following a Rule 104 hearing prior to trial, Judge Mellaci granted the State's motion to admit evidence of defendant's theft of the Chevy Lumina in Massachusetts and subsequent abandonment of the car on the Parkway. The judge found defendant's theft, possession, and abandonment of the car qualified as intrinsic evidence because it served to establish defendant's identity and presence in Tinton Falls, where the victim was attacked, and demonstrated his "capacity and motive for the commission" of the charged offenses.
The judge found the theft also qualified as intrinsic evidence because it was "performed contemporaneously with the charged crimes in this indictment" and facilitated their commission. He concluded the proximity of the abandoned stolen car to the victim's home and that the charged offenses were committed to facilitate defendant's escape from the area helped to paint the full picture of defendant's crimes. Judge Mellaci found "but for the stolen Chevy Lumina it is unlikely . . . defendant would have ever been in the vicinity to even commit the alleged crime." Noting defendant stole the car a day before the charged crimes, the court "nevertheless conclude[d] that the events occurred contemporaneously as they were part of an unbroken chain of events."
Defendant raises the following issues on appeal.
POINT I
THE TRIAL JUDGE ERRED IN FAILING TO CHARGE ACCOMPLICE LIABILITY AS THERE WAS DOUBT AS TO THE DEGREES OF CRIMES ALLEGEDLY COMMITTED BY EACH OF THE TWO PARTICIPANTS. (Not Raised Below).
POINT II
THE TRIAL JUDGE ERRED IN ADMITTING EVIDENCE OF THE THEFT OF THE LUMINA AS THIS EVIDENCE WAS NOT AN "INTRINSIC" PART OF THE SUBSEQUENT CRIMES OF BURGLARY AND ROBBERY.
POINT III
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Appellant raises the following issues in his pro se supplemental brief:
POINT I
THE JURY VERDICTS IN THIS CASE WERE IRRATIONALLY INCONSISTENT CONSTITUTING A LOGICAL IMPOSSIBILITY[.] THUS, THE CONVICTION IS CONTRARY TO FEDERAL AND STATE LAW WHERE DEFENDANT WAS DENIED OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL[.] U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1,9,10 MANDATING REVERSAL OF THE CONVICTION IN THE INTEREST OF JUSTICE.
POINT II
[THE] TRIAL COURT ERRED IN IMPOSING RESTITUTION, I.E., FINES, WITHOUT FIRST HOLDING A HEARING TO ACCESS APPELLANT'S ABILITY TO PAY VIOLATED FEDERAL AND STATE DUE PROCESS AND EQUAL PROTECTION UNDER U.S. CONST. [AMEND] XIV; N.J. CONST. (1947) ART. I, PAR. 1,5.
Our review of the record convinces us that defendant's claims of error in the charge and in admitting the evidence of the uncharged theft of the car are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's claim that the trial court committed plain error by failing to sua sponte instruct the jury on accomplice liability is without basis. The State prosecuted defendant as a principal, not as an accomplice. Defendant argued that he was not involved in the crimes at all, and that two unknown perpetrators beat the victim and stole his car. "When the State's theory of the case only accuses the defendant of being a principal, and a defendant argues that he was not involved in the crime at all, then the judge is not obligated to instruct on accomplice liability." State v. Maloney, 216 N.J. 91, 106 (2013).
Defendant's argument that the jury's verdict finding him not guilty of causing serious bodily injury to the victim is irrationally inconsistent with its finding that he caused the victim significant bodily injury is premised on a misapprehension of the grading of the offense of aggravated assault. In any event, inconsistent verdicts are beyond the purview of a court to correct. Maloney, supra, 216 N.J. at 109.
We likewise reject defendant's claim that the court erred in admitting his theft of the Chevy Lumina as intrinsic to the robbery. Judge Mellaci carefully analyzed that uncharged bad act evidence as required under State v. Rose, 206 N.J. 141, 159 (2011), making the threshold determination under Rule 404(b) that it was evidence intrinsic to the charged crimes, needing only to satisfy the test of Rule 403. Judge Mellaci's reasoned analysis of this evidence was both logical and in accordance with established precedent. We find no abuse of discretion. See State v. J.A.C., 210 N.J. 281, 295 (2012).
We also reject defendant's argument that his sentence is excessive. "Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). Defendant does not dispute that he was extended term eligible under N.J.S.A. 2C:44-3a and f. He had been sentenced previously in Massachusetts on eight different occasions on twenty-six separate counts, twenty-four of which were analogous to offenses under our Code. At least three of those offenses were equivalent to first, second or third degree indictable offenses in New Jersey.
Defendant was convicted by the jury of the savage beating of an eighty-two year old man, after having broken into his home in the middle of the night. The victim testified he was incapacitated by the beating he had received and lay helpless on the floor, and that defendant continued to kick him after the co-defendant announced he had found the victim's car keys, the ostensible purpose for breaking into the house.
We are satisfied Judge Mellaci's careful findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
As the judge did not order restitution "for the obvious reason he'll have no ability to pay while in prison," and imposed only the minimum mandatory penalties, defendant's pro se argument that the court improperly imposed restitution and fines without assessing his ability to pay is without merit. See State v. Bolvito, 217 N.J. 221, 232-33 (2014) (holding that a penalty statutorily prescribed to be a "fixed amount" for each offense must be imposed regardless of ability to pay).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION