Opinion
DOCKET NO. A-5307-12T1
03-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MANUEL RAMIREZ, a/k/a BIMPY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Anthony C. Talarico, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Kennedy and Gilson. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-11-1906. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Anthony C. Talarico, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Manuel Ramirez was present when a co-defendant assaulted and stabbed a victim. Defendant and two co-defendants then fled and the victim later died of his stab wounds. A jury convicted defendant of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), as a lesser-included offense of murder, and two counts of third-degree hindering by flight and providing false information, N.J.S.A. 2C:29-3(a)(2), (b)(4). On the manslaughter conviction, defendant was sentenced to ten years in prison, with eighty-five percent of that time ineligible for parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was also sentenced to two terms of five years in prison for each of the hindering convictions, both concurrent to the manslaughter sentence. In addition, defendant was ordered to pay $8360 in restitution. We affirm defendant's convictions and sentence, but remand for a hearing on restitution and for the amendment of the judgment of conviction to delete an aggravating factor not found by the judge.
I.
The testimony at trial established that on June 24, 2009, defendant was attending a party with several friends, including Gabriel Pujols and Frederick DeLeon. Pujols and DeLeon both testified that they and defendant were members of the Dominicans Don't Play (DDP) street gang.
During the evening, defendant, Pujols and another acquaintance left the party to go to a deli. While at the deli, there was a confrontation involving several individuals, including a former member of DDP and members of another Dominican street gang. The confrontation at the deli involved verbal exchanges, but did not escalate into a physical fight, and the two groups involved went their separate ways.
Later that evening, defendant was driving with Pujols, DeLeon and DeLeon's former girlfriend, C.C. to drop C.C. home. While driving, defendant saw several people in front of a house and recognized some of the people as individuals from the earlier confrontation at the deli. Defendant made a U-turn, parked the car near the group, and Pujols and DeLeon exited the car. There was conflicting testimony at trial as to whether defendant also got out of the car. DeLeon then threw beer bottles at the group and the group of men began to run, with Pujols and DeLeon pursuing them. Pujols caught V.G., who he mistakenly thought was someone he had confronted earlier at the deli. Pujols and DeLeon then physically attacked V.G. and during that assault, Pujols pulled out a knife and stabbed V.G. three times. DeLeon testified that defendant also participated in the assault and kicked V.G. twice. Pujols, in contrast, testified that defendant was not involved in the assault. After V.G. was stabbed, defendant, Pujols and DeLeon fled the scene in the car. V.G. was taken to a hospital and died eight days later of his stab wounds.
We use initials for witnesses and the victim to protect privacy interests. --------
Defendant, Pujols and DeLeon were arrested and charged in connection with the death of V.G. Defendant gave a statement to the police denying his involvement in the stabbing incident. Defendant also denied having any current gang affiliation. The trial judge found defendant's statement admissible, and it was presented to the jury. Defendant elected not to testify at trial.
Before trial, the State moved to admit evidence that defendant was a member of a street gang as proof of motive for the stabbing. Specifically, the State wanted to have witnesses testify about defendant's gang affiliation and how that affiliation played a role in the murder of V.G. The State also proposed to have an expert testify as to how Dominican street gangs operated. The trial court conducted a hearing, and found that the gang-related evidence was admissible pursuant to N.J.R.E. 404(b) to show motive. The judge also allowed testimony from the State's expert on street gangs.
Pujols and DeLeon pled guilty to aggravated manslaughter and testified as witnesses for the State at defendant's trial. As part of its case-in-chief, the State also presented testimony from C.C. She testified that before the stabbing, she heard defendant, Pujols and DeLeon discuss that they were upset about their friend being "jumped" and they all said they wanted "to do something about it."
The jury found defendant guilty of second-degree reckless manslaughter and two counts of third-degree hindering prosecution. The jury acquitted defendant of his other charges, including first-degree conspiracy to commit murder, N.J.S.A. 2C:2-6; 2C:5-2; and 2C:11-3(a).
II.
On appeal, defendant makes three arguments:
POINT ONE: THE TRIAL COURT ERRED IN ADMITTING GANG RELATED EVIDENCE.
POINT TWO: THE ADMISSION INTO EVIDENCE OF PROPENSITY EVIDENCE DEPRIVED MR. RAMIREZ OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
POINT THREE: THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE AND FAILING TO HOLD A RESTITUTION HEARING.
A.
Defendant first argues that the trial judge erred in admitting gang-related evidence pursuant to N.J.R.E. 404(b) as proof of motive for the stabbing.
It has been recognized that "the average juror would likely conclude that a gang member has engaged in criminal activity[, and that] [s]uch evidence has the potential to 'taint' a defendant . . . ." State v. Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). Consequently, gang-related evidence should only be admitted if the State satisfies the "demanding provisions of N.J.R.E. 404(b), as interpreted in [State v. Cofield, 127 N.J. 328 (1992)]." Goodman, supra, 415 N.J. Super. at 228.
Pursuant to N.J.R.E. 404(b), evidence of other crimes or bad acts is generally not admissible, unless used for "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." In Cofield, our Supreme Court set forth a four-pronged test to govern the admission of such evidence:
1. The evidence of the other crime must be admissible as relevant to a material issue;Our Supreme Court has also explained that the second Cofield prong "is not one that can be found in the language of [N.J.R.E.] 404(b). Cofield's second prong, therefore, need not receive universal application in [N . J.R.E.] 404(b) disputes." State v. Williams, 190 N.J. 114, 131 (2007).
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338 (quoting Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 Emory L.J. 135, 160 (1989)); see also State v. Carlucci, 217 N.J. 129, 140-41 (2014) (reaffirming the Cofield test).]
Once evidence is found to be admissible, "the court must instruct the jury on the limited use of the evidence." Cofield, supra, 127 N.J. at 340-41. "[T]he court's instruction 'should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.'" Id. at 341 (quoting State v. Stevens, 115 N.J. 289, 304 (1989)).
An appellate court gives "great deference" to a trial judge's determination on the admissibility of "other bad conduct" evidence. Goodman, supra, 415 N.J. Super. at 228 (citing State v. Foglia, 415 N.J. Super. 106, 122 (App. Div.), certif. denied, 205 N.J. 15 (2010)). We apply an abuse of discretion standard; there must be a "clear error of judgment" to overturn the trial court's determination. State v. Castagna, 400 N.J. Super. 164, 182-83 (App. Div. 2008).
Here, the trial judge held an N.J.R.E. 104 hearing and found that all four of the Cofield factors were satisfied. Specifically, the trial judge found that the motivation for the stabbing as it relates to the gang affiliation of defendant and his co-defendants was a material issue in dispute. There was evidence that Pujols was upset about the incident at the deli because the incident involved an individual who had defected from DDP and two other rival gang members.
Because the offered gang-related evidence concerned an incident that took place only a few hours before the stabbing, the proffered evidence satisfied the second prong of the Cofield test.
With regard to the third prong, the trial judge found that clear and convincing evidence confirmed defendant and the co-defendants' gang affiliation. On appeal, defendant argues that the gang-related evidence concerning motive was contradictory and, therefore, the evidence was not clear and convincing. Defendant's argument misses the correct point. The third factor of Cofield requires clear and convincing evidence of the other crime or bad act. Here, the other crime or bad act is the gang affiliation of defendant and the co-defendants who participated in the assault of the victim. The testimony of both Pujols and DeLeon provided clear and convincing evidence concerning defendant's gang affiliation. The separate question of whether that gang affiliation motivated the stabbing was a question for the jury.
Finally, the trial judge concluded that the prejudice did not outweigh the probative value because the gang-related evidence explained why the assault and stabbing took place.
Our review of the record and the trial judge's decision convinces us that the trial judge did not abuse his discretion in admitting the gang-related evidence. We also find that the judge appropriately admitted expert testimony concerning Dominican street gangs. See State v. Torres, 183 N.J. 554, 578-79 (2005) (allowing such expert testimony to provide the jury with the necessary context concerning how street gangs operate).
B.
Defendant next argues that the trial judge made two evidentiary errors, by allowing (1) a police officer to testify that he recognized defendant; and (2) C.C. to testify that she heard defendant, Pujols and DeLeon discuss how their friend had been jumped and that they wanted to do something about it. On appeal, defendant argues that this testimony was not probative, but was prejudicial because it suggested defendant had a propensity to commit crimes. Defendant, however, never raised a N.J.R.E. 404(b) or N.J.R.E. 403 objection at trial. Instead, defendant failed to object to the testimony of the police officer, and the only objection defendant raised to C.C.'s testimony was a hearsay objection.
When reviewing evidentiary rulings, we evaluate such rulings under an abuse of discretion standard and we accord the trial judge substantial deference. See State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); Goodman, supra, 415 N.J. Super. at 224.
We discern no error or abuse of discretion regarding the police officer's testimony. The officer in question was shown video footage taken on the night of the murder from a security camera near the deli. The officer testified that he recognized defendant as one of the passengers in a car shown in the footage. Defense counsel did not object to that testimony. Instead, following that testimony, the parties participated in a sidebar discussion concerning whether the video itself could be shown at that time to the jury. During that sidebar discussion, defense counsel referenced the testimony and suggested that the jury might think that the officer knew defendant from prior criminal activity. However, counsel did not ask to strike the testimony or for any kind of curative instruction. More importantly, the officer never testified as to how he knew defendant. Given these facts, we see no abuse of discretion by the trial judge.
Turning to C.C.'s testimony, we also see no abuse of discretion. C.C. related a discussion she overheard among defendant, Pujols and DeLeon. The State sought to introduce that testimony as it related to the motive for the stabbing, and the trial judge overruled the hearsay objection because the statements were made by defendant and two alleged co-conspirators. The statements were an exception to the hearsay rule as statements by a party-opponent, N.J.R.E. 803(b)(1); or as co-conspirator statements, N.J.R.E. 803(b)(5). Defendant had the opportunity to confront Pujols and DeLeon regarding these statements because both were called as witnesses by the State. The statements were also relevant and probative to the motive for the subsequent stabbing. In that regard, the statements were intrinsic evidence of the motive and were admissible as such. See State v. Rose, 206 N.J. 141, 180 (2011) (explaining that intrinsic evidence that directly proves an alleged offense is admissible and does not need to be analyzed under the four-part Cofield test).
C.
Lastly, defendant claims that the trial judge erred in weighing the aggravating and mitigating factors and in imposing the maximum sentence for a second-degree crime. Defendant also contends that the trial judge erred in imposing restitution without a hearing.
Appellate review of sentencing decisions is deferential and governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). "The reviewing court must not substitute its judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). "At the time of sentencing, the court must 'state reasons for imposing such sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence.'" Id. at 73 (quoting R. 3:21-4(g)); see also State v. Case, 220 N.J. 49, 54 (2014); State v. Lawless, 214 N.J. 594, 608 (2013). An appellate court must affirm a sentence unless:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."Whether a sentence violates sentencing guidelines is a question of law that we review de novo. State v. Robinson, 217 N.J. 594, 603-04 (2014).
[Fuentes, supra, 217 N.J. at 70 (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
The trial judge found three aggravating factors: factor three, the risk that defendant would "commit another offense," N.J.S.A. 2C:44-1(a)(3); factor five, a substantial likelihood that defendant was "involved in organized criminal activity," N.J.S.A. 2C:44-1(a)(5); and factor nine, the need to deter such criminal activity, N.J.S.A. 2C:44-1(a)(9). The judge then found two mitigating factors: factor seven, defendant had no prior history of criminal activity, N.J.S.A. 2C:44-1(b)(7); and factor eleven, excessive hardship to defendant's dependents, N.J.S.A. 2C:44-1(b)(11). The judge articulated the factual bases for those aggravating and mitigating factors noting that defendant's action in hindering both his prosecution and the prosecution of his co-defendants supported a finding that he would be likely to commit other crimes, the death of the victim arose out of a backdrop involving gang rivalries, and there was a need to deter this type of "senseless" crime. With regard to the mitigating factors, the judge noted that defendant did not have a criminal record and he had a son. The trial judge then found that the aggravating factors substantially outweighed the mitigating factors and he imposed a ten year sentence, which was at the high end of the range for a second-degree crime. We find no abuse of discretion in that sentence.
We do, however, remand so that the judgment of conviction can be corrected. Both the State and defendant noted that the judgment of conviction inaccurately lists aggravating factor four, N.J.S.A. 2C:44-1(a)(4), although the trial judge did not find that factor on the record. Accordingly, the judgment of conviction should be amended to delete that factor.
We also remand for a restitution hearing. The trial judge ordered defendant to pay $8360 in restitution without a hearing. The State concedes that a remand is required so that a restitution hearing can take place. See N.J.S.A. 2C:44-2(b), (c).
The convictions and sentence are affirmed. We remand to amend the judgment of conviction and to hold a restitution hearing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION