NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1205-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LARRY CARDONA, a/k/a LARRY CORDONA,
Defendant-Appellant. _______________________________
Submitted January 23, 2017 – Decided May 11, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-09-0940.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Y. Kyles, Assistant Deputy Public Defender, of counsel and on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Larry Cardona appeals from a judgment of conviction
for three second-degree crimes: two weapons offenses and
aggravated assault. For those crimes, a judge sentenced defendant
to an aggregate sixteen-year prison term with eleven and one-half
years of parole ineligibility. On appeal, defendant argues:
POINT I
THE WARRANTLESS SEARCH OF CARDONA'S BEDROOM, WHICH WAS NOT SHOWN TO HAVE BEEN BASED ON A VALID CONSENT TO SEARCH, VIOLATED MR. CARDONA'S RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES. THE INTERESTS OF JUSTICE REQUIRE THAT THIS COURT REVIEW THE RECORD ANEW AND ORDER THAT THE FRUITS OF THE UNCONSTITUTIONAL SEARCH SHOULD HAVE BEEN SUPPRESSED.
POINT II
THE COURT ERRED IN ADMITTING THE PRIOR STATEMENTS OF ROBIN NUNEZ AND PAULINO JUAREZ INTO EVIDENCE AS THE STATE FAILED TO SATISFY THE STANDARDS OF STATE V. GROSS. U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. 1, PAR. 10.
POINT III
THIS MATTER MUST BE REMANDED FOR RE-SENTENCING BECAUSE CONSECUTIVE SENTENCES ARE UNWARRANTED IN THIS MATTER, AND THE TERM OF YEARS IMPOSED FOR AGGRAVATED ASSAULT IS EXCESSIVE DUE TO THE IMPROPER FINDING OF AGGRAVATING FACTOR ONE.
For the reasons that follow, we affirm.
In September 2011, a Union County grand jury charged defendant
in an indictment with first-degree attempted murder, N.J.S.A.
2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated
2 A-1205-14T1 assault, N.J.S.A. 2C:12-1(b)(1) (count two); second-degree
unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b)
(count three); and second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). Following the
indictment, the State and defendant filed pre-trial motions.
Defendant moved to suppress a box of bullets, gang
memorabilia, and other evidence police seized when they searched
his bedroom, in his mother's home, with her written consent. The
court denied defendant's motion.
The State moved to admit evidence of defendant's gang activity
and to allow an expert to testify about various aspects of gang
activity. After conducting motion hearings, the court determined
evidence of defendant's gang activity was admissible under
N.J.R.E. 404(b), but denied the State's application to present
expert testimony on the subject unless issues arose during trial
that needed explanation.1
At the conclusion of defendant's trial, the jury acquitted
him of first-degree attempted murder, but convicted him of the
remaining counts. At sentencing, the court merged count four,
possession of a weapon for an unlawful purpose, with count two,
1 During the trial, the court permitted the State to present expert testimony on gang activity to the jury. The court's decisions on the State's motion concerning gang activity and the expert have not been appealed.
3 A-1205-14T1 aggravated assault; and sentenced defendant on count two to a ten-
year prison term subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. On count three, unlawful possession of a
weapon, the court imposed a consecutive six-year prison term with
thirty-six months of parole ineligibility. This appeal followed.
We first recount the testimony the parties presented at the
hearing on defendant's suppression motion. Elizabeth Police
Department Detective Amilcar Colon testified that on April 23,
2011, police arrested defendant and charged him with the victim's
attempted murder. Although the victim had been shot, law
enforcement authorities had not recovered the gun. Aware that
defendant resided with his mother at her Elizabeth home, Detective
Colon and four or five other officers drove there that night and
met with her.
The detective spoke Spanish somewhat fluently and had no
difficulty communicating in Spanish on a day-to-day basis. He
spoke in Spanish when communicating with defendant's mother.
According to Detective Colon, he had "not one bit" of difficulty
understanding defendant's mother throughout their entire
interaction. She appeared to be lucid and sober, and had no
difficulty understanding him.
Defendant's mother answered Detective Colon's knock at her
door. He and the other officers entered an enclosed porch area
4 A-1205-14T1 to explain the situation. Detective Colon testified that, at
first, the situation was "kind of confusing" for defendant's mother
"because she [did not] know what was going on," but after he
explained the events her son was involved in, their relationship
became more helpful and cordial.
Detective Colon authenticated a Spanish consent-to-search
form that he and defendant's mother signed at 11:10 p.m. The
court admitted the form into evidence. The detective testified
that he discussed the form with defendant's mother before she
signed it. He handed the consent form to her and explained, in
Spanish, what the consent form was. He "explained to her that it
was a permission to search [and] that she had every right to
refuse, if she wanted to." He also afforded her the chance to
read the document, which she appeared to do. She expressed no
confusion; rather, she discussed how her son had been a problem
lately, "'hanging out, smoking, doing whatever.'"
Detective Colon told defendant's mother the officers wanted
to search defendant's room. According to Detective Colon,
defendant's mother seemed fine and appeared to understand him when
he told her she had the right to refuse to consent. No one
threatened her or made any promises to her before she signed the
form.
5 A-1205-14T1 Defendant's mother and Detective Colon moved to the kitchen,
where she signed the form. Other officers were either in the
kitchen or on the first floor at the time. Detective Colon
testified explicitly that none of the officers went upstairs before
defendant's mother signed the form.
After defendant's mother signed the consent-to-search form,
officers from the night squad went to the room and searched it.
The officers found and seized the following items: a box containing
fifty-seven .45 caliber Winchester bullets; a yellow and black
bandana; a yellow do-rag with a partial gang manifesto; three
envelopes addressed to defendant, sent by an individual who was
incarcerated; a legal notice from the Union County Probation
Department; a State of New Jersey Health Benefits identification
card; a health insurance card; and a Public Defender reimbursement
Defendant's mother, using an interpreter to testify on behalf
of her son, offered a different account of the events leading up
to the search of her son's room.2 According to her, during the
evening of April 23, 2011, she received a call from the Elizabeth
Police Department. The caller said the police needed to search
her house. She replied, "yes, of course. You may come."
2 Defendant's mother testified before Detective Colon. Defendant consented to her testifying first.
6 A-1205-14T1 Approximately an hour later, Detective Colon and other law
enforcement officers arrived at the home and knocked on the front
door. Defendant's mother opened the door and Detective Colon and
the other officers stepped inside. They asked to search her son's
bedroom for a gun.
According to defendant's mother, the police asked her to sign
a permit authorizing them to search the house. Officers were
already in her son's bedroom when she was first shown the form.
She testified she then led the officers to her son's bedroom, but
before they began their search, Detective Colon informed her of
her right to refuse.
According to the consent form, defendant's mother authorized
law enforcement to conduct "a complete search of [her] entire
house[.]" However, she said she was "nervous" and did not "really
read [the form] well." She said police did not thoroughly explain
the form before she signed it. While defendant's mother
acknowledged in the form that she had the right to refuse the
search, she nevertheless consented without feeling forced to do
so.
After considering the testimony of Detective Colon and
defendant's mother, the trial court denied defendant's suppression
motion. The court noted some inconsistencies between the two
witnesses' accounts and resolved them in favor of the detective's
7 A-1205-14T1 testimony. The court found that Detective Colon explained the
consent form to defendant's mother. The court concluded
defendant's mother knowingly and voluntarily consented to the
search after being told she had the right to refuse.
The case proceeded to trial. The State presented evidence
that on the night of April 11, 2011, the victim, a member of the
“Rollin 60s Crips” (60s) street gang, and a friend with no gang
affiliation, went to a gas station in Elizabeth to pick up a
“Dutch,” or "blunt." While at the gas station, they encountered
members of the rival Latin Kings (Kings) gang. The victim, then
twenty years old, had known the Kings gang members, including
defendant, since he was eleven or twelve.
Shortly after the encounter with the Kings gang members, the
victim and his friend walked away from the gas station. At trial,
the victim claimed he and his friend walked in a different
direction from that taken by the Kings gang members. As the victim
and his friend walked away, someone shot the victim. The victim
testified the shot came from a passing car, and defendant was
nowhere around.
At the hospital in the days following the shooting, the victim
gave police a statement inconsistent with that of his trial
testimony. According to his statement, the victim "had some beef"
with defendant, who was looking to fight the victim. As the victim
8 A-1205-14T1 prepared to fight, defendant "walked in front of [him] . . . turned
around[,] and shot [him]." The victim was positive defendant was
the shooter and identified a photograph of defendant. Although
defendant fired the gun once, the victim instinctively tried to
block the shot with his hand. He was wounded in the hand and in
the groin. The victim then ran back to the gas station with his
friend while the others fled the scene.
As previously noted, the victim refused to implicate
defendant at trial. The victim denied having any memory of his
sworn, audio-recorded statement to the police, claiming he was
heavily sedated in his hospital bed when he allegedly gave the
statement.
Asserting the victim’s trial testimony was contrary to his
previous sworn statement, the prosecutor moved under N.J.R.E.
803(a)(1) and State v. Gross, 121 N.J. 1 (1990), to admit the
prior statement. The court conducted a hearing under N.J.R.E. 104
to determine the reliability of the statement. The victim and an
officer testified.
The victim claimed he could not remember anything about the
statement, including signing it. Elizabeth Police Department
Detective Vincent Napoli, who obtained the statement from the
victim, testified he did not exhibit any difficulties in providing
the statement nor did he show any signs of drug or alcohol
9 A-1205-14T1 influence. Detective Napoli noted the victim was not in custody
or under arrest when he gave the statement. In addition, the
night before the detective took the statement, the victim told the
detective who was responsible for the shooting. The detective
explained that despite giving the statement, the victim was "very
scared" and reluctant to provide details because of the involvement
of the Latin Kings.
After considering the testimony, the court found the State
had established the statement’s reliability by a preponderance of
the credible evidence. Specifically, the court stated:
[the statement] is a sound recording. The circumstances under which it was given . . . establishe[] not only that [the victim] was lucid and not under any undue coercion at the time, but . . . also . . . that what he [is] saying now, his lack of recollection is feigned. I'm satisfied that the circumstances under [which] it was given . . . evidence[] its reliability. I'm also satisfied that it's inconsistent with his testimony, and I will allow the State to confront the witness with this statement.
In front of the jury, the prosecutor impeached the victim with his
prior sworn statement.
To bolster its case against defendant, the State called the
victim's friend to testify. However, as with the victim, the
friend denied recalling the particulars of the shooting. The
friend acknowledged he was “really uncomfortable” testifying at
10 A-1205-14T1 trial as he continued to deny any recollection of the incident.
He also claimed he did not recall giving two statements to law
enforcement officers.
The State moved to admit the friend's video-taped statement,
recorded April 19, 2011, under N.J.R.E. 803(a)(1).3 In that
statement, the friend told Detective Napoli that as he, the victim,
defendant, and another person walked away from the gas station
together, the victim told defendant, "I know y'all going to jump
me." Although defendant replied, "ain't nobody going to jump
you," defendant pointed and fired a gun at the victim.
The court conducted another N.J.R.E. 104 hearing. The friend
claimed he feared arrest had he not told law enforcement what they
wanted to hear. In contrast, Detective Napoli testified he did
not tell the friend what to say in his statement and that the
friend did not appear to be under the influence of any substances.
Detective Napoli emphasized he did not threaten or coerce the
friend during their interview.
3 The friend also provided a video-taped statement to Detective Napoli on April 12, 2011. In his April 12th statement, the friend denied being present during the shooting and made no mention of defendant. Detective Napoli returned for an additional interview on April 19, 2011, because the April 12th statement was inconsistent with the statement the victim had made to officers while hospitalized. Defendant does not challenge the admissibility of the friend's April 12th statement.
11 A-1205-14T1 The court admitted the statement, satisfied that it "was
given under circumstances evidencing its reliability." The court
based this finding in part on the fact that the statement was
video-recorded. In addition, the court explained:
I am also satisfied that [the friend] is feigning a lack of recognition, and the jury is entitled to hear what he said at a prior time. He's, in effect, putting up a bridge, preventing the prosecutor from having him recount those previous events. . . . I make that finding of feigned lack of recollection based upon his demeanor for one. He's just monotonous. Unlike [the victim] who had the same feigned lack of recollection, but where [the victim] had that light smile in his background, like, yeah, I know we all know that I'm just faking, and he was almost cute about it.
[The friend] is just monotonous. He denies knowing or remembering anything. It's clear to me he's not being truthful when he says that, and I think a jury is entitled to hear what he previously said and evaluate the reliability.
The State then played the friend's recorded statement to the jury.
The State presented other evidence, including a shell casing
found at the scene and the items the police seized from defendant's
bedroom. A medical witness, qualified as an expert in trauma
surgery, testified that when the victim arrived at the hospital,
his blood pressure was very low and he exhibited signs of shock
from blood loss. The doctor testified the victim was “rapidly
approaching death” based on his condition. According to the
12 A-1205-14T1 doctor, the victim was shot "in the right groin . . . where [the]
leg attaches to the rest of [the body]." As part of that wound,
the doctor noted the victim sustained an injury to his "common
femoral artery."
Defendant did not testify. As previously noted, the jury
convicted defendant of two weapons offenses and aggravated
assault.
In the first argument defendant raises on appeal, he
challenges the trial court's denial of his suppression motion.
Specifically, he argues "the State failed to show that [defendant's
mother] gave voluntary consent, aware of her right to refuse."
Defendant further argues that "[e]ven if she did otherwise
ultimately give a knowing consent, the search was unconstitutional
because it was under way before she was fully advised of her rights
and before she signed the consent-to-search form." Lastly,
defendant asserts his mother's "language barrier was . . . a
frustration for her," and "[i]t was fully evident at the hearing
that she was frightened and confused by the police officers who
telephoned her and then arrived, in force, at her home."
Defendant's arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). Her arguments
are based on the implicit proposition that the trial court should
have accepted her testimony as credible. To the extent Detective
13 A-1205-14T1 Colon's testimony contradicted that of defendant's mother, the
court found the detective's testimony credible. Our standard of
review requires deference to trial court's findings of fact,
including its credibility determinations. See State v. Scriven,
226 N.J. 20, 32 (2016). That is particularly so as "to those
findings of the trial judge which are substantially influenced by
his opportunity to hear and see the witnesses and to have the
'feel' of the case, which a reviewing court cannot enjoy." State
v. Johnson, 42 N.J. 146, 161 (1964). Thus, if our review satisfies
us the trial court's findings could reasonably have been reached
on sufficient, credible evidence present in the record, our task
is complete and we should not disturb the result. Id. at 162.
Such is the case here.
Defendant's second argument — the trial court erred by
admitting the prior statements the victim and his friend gave to
law enforcement officers — is equally unavailing. Defendant
contends "[t]he 'physical and mental condition' of [the victim],
the 'nature of [his] interrogation,' and his 'motive to fabricate'
weighed against finding his statement reliable and admitting it."
Defendant further contends the victim's friend "thought he would
be in trouble if his story did not conform to [the victim's]."
Thus, defendant believes the friend "had . . . obvious motives to
fabricate, first in order to avoid the threatened 'consequences,'
14 A-1205-14T1 and secondly to assist his good friend by corroborating his account
of events."
Once again, defendant's arguments overlook the trial court's
credibility determinations and our standard of review. The
arguments are, essentially, disagreements with the weight the
trial court gave to the testimony presented at the N.J.R.E. 104
hearings. Like his arguments concerning his mother's consent,
defendant's arguments concerning the admission of the victim's and
his friend's prior statements are largely based on the implicit
premise that the court should have found credible the victim's and
friend's claimed lack of memory and, in the friend's case, the
alleged coercion. Ample evidence in the record supported the
trial court's determination. Defendant's arguments to the
contrary are without sufficient merit to warrant further
discussion. R. 2:11-3(e)(2).
In his final argument, defendant contends the trial court's
imposition of consecutive sentences was unwarranted and the
custodial term imposed on the aggravated assault offense is
excessive. We disagree.
The role of an appellate court in reviewing a sentence is to
determine:
(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably
15 A-1205-14T1 credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.
[State v. Megargel, 143 N.J. 484, 493 (1996) (citation omitted).]
When adhering to this standard of review, appellate courts
afford considerable deference to the decision of a sentencing
court provided that "the trial judge follows the Code and the
basic precepts that channel sentencing discretion." State v.
Case, 220 N.J. 49, 65 (2014).
Defendant first challenges the trial court's imposition of
consecutive sentences. The decision to impose consecutive
sentences under N.J.S.A. 2C:44-5(a) "requires analysis of
specifically enumerated factors" set forth under State v.
Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106
S. Ct. 1193, 89 L.Ed. 2d 308 (1986). State v. Randolph, 210 N.J.
330, 352-53 (2012). "When a sentencing court properly evaluates
the Yarbough factors in light of the record, the court's decision
will not normally be disturbed on appeal." State v. Miller, 205
N.J. 109, 129 (2011). However, when a sentencing court fails to
explain its decision to impose consecutive sentences, a remand is
generally required for the judge to provide an explanation on the
record. Ibid.
16 A-1205-14T1 In challenging the consecutive nature of his sentence,
defendant relies on State v. Copling, 326 N.J. Super. 417 (App.
Div. 1999), certif. denied, 164 N.J. 189 (2000) for the proposition
that the court should not have identified society as a separate
victim of his unlawful possession of a handgun conviction. In
that case, the defendant challenged his consecutive sentences for
murder and unlawful possession of a weapon, receiving concurrent
sentences for his remaining offenses. Id. at 440-41. There, the
trial judge imposed consecutive sentences on these two offenses
because:
the 'objectives and purposes' of the crimes for weapons possession and murder are different, and the victims as well were different. Whereas the victim of the murder and manslaughter charges were K.C. and Malik, the true victim of unlawful possession of a handgun is society as a whole.
[Id. at 441.]
We rejected the trial judge's rationale that the "objectives and
purposes" and victims of these two offenses were different, and
reversed the defendant's consecutive sentences. Id. at 441-42.
Specifically, we found the goal of the unlawful possession statute
"is to protect others from being killed by those who own weapons,"
similar to the objectives of the murder statute, which protects
the public from unlawful killing. Id. at 441. Additionally, the
17 A-1205-14T1 court noted "the victims sought to be protected by the two statutes
are the same." Id. at 441-42.
In the case now before us, the court explained that
consecutive sentences were appropriate because "these were
separate offenses that were committed at separate times with
separate victims." Specifically, the court noted "no one handed
. . . [defendant] the gun at the exact time of the shooting. It's
clear, based upon his possession of ammunition, . . . that he had
the gun before. It's a containing offense . . . [that] was
complete[] at the time he was in the gas station[.]" Although the
court did state that society was a separate victim in this case,
unlike Copling, the trial court here gave other reasons for
imposing consecutive sentences. That defendant committed separate
offenses, and that there can be no free crimes in a system for
which the punishment shall fit the crime, are relevant Yarbough
factors that support the imposition of consecutive sentences.
Supra, 100 N.J. at 643-44.
Defendant also argues the trial court improperly speculated
as to whether defendant continuously possessed the handgun prior
to and after the shooting. That is not so. There is competent,
credible evidence in the record to support the trial court's
finding that defendant unlawfully possessed the handgun prior to
the shooting. None of the State's witnesses testified defendant
18 A-1205-14T1 was handed the gun at the time of the shooting, and a search of
defendant's room uncovered a box of bullets of the same caliber
as the shell casing found on the curb near the gas station.
Lastly, defendant argues the court erred by finding
aggravating factor one, N.J.S.A. 2C:44-1(a)(1), the nature and
circumstances of the offense, including whether it was committed
in an especially heinous, cruel, or depraved manner. Defendant
contends his conduct does not amount to such ruthless or callous
behavior required to sustain a finding of this aggravating factor.
"[T]he finding, weighing, and balancing of aggravating and
mitigating factors involves marshaling information to assess the
severity of sentence to be imposed for the crime that the defendant
committed." Randolph, 210 N.J. at 349. When the finding of such
factors are "supported by competent, credible evidence in the
record, and properly balanced, [appellate courts] must affirm the
sentence and not second-guess the sentencing court[.]" Case,
supra, 220 N.J. at 65 (citing State v. Natale, 184 N.J. 458, 365
(2005)).
Under aggravating factor one, "the sentencing court reviews
the severity of the defendant's crime, the single most important
factor in the sentencing process, assessing the degree to which
defendant's conduct has threatened the safety of its direct victims
and the public." State v. Lawless, 214 N.J. 594, 609 (2013)
19 A-1205-14T1 (citations omitted). In that analysis, "courts applying
aggravating factor one focus on the gravity of the defendant's
conduct, considering both its impact on its immediate victim and
the overall circumstances surrounding the criminal event." Id.
at 609-10.
Here, the sentencing court found aggravating factor one
because there was "a certain heinous, cold demeanor . . . displayed
by the defendant, where [the victim] is walked off to potentially
be executed. There's a coldness of purpose in . . . his words."
Significantly, however, the court emphasized that it did not give
aggravating factor one "an undue amount of weight" or "an
unbearable amount of weight," because doing otherwise would double
count the factor given that the infliction of serious bodily injury
was an element of aggravated assault. In view of these statements,
together with the court's finding other aggravating factors — the
risk of reoffense, elements of organized criminal activity,
defendant's prior criminal record, and the need to deter — and the
absence of mitigating factors, we conclude the court's analysis
of aggravating factor one does not require resentencing.
For the foregoing reasons, we affirm defendant's convictions
and sentence.
Affirmed.
20 A-1205-14T1