State v. Paduani

704 A.2d 582, 307 N.J. Super. 134, 1998 N.J. Super. LEXIS 14
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 15, 1998
StatusPublished
Cited by18 cases

This text of 704 A.2d 582 (State v. Paduani) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Paduani, 704 A.2d 582, 307 N.J. Super. 134, 1998 N.J. Super. LEXIS 14 (N.J. Ct. App. 1998).

Opinion

The opinion of the court was delivered by

KLEINER, J.A.D.

On February 2,1995, defendant, Jose Paduani, and his brother, Richard Paduani, were charged with: aggravated assault against Jose Rodriguez, contrary to N.J.S.A. 2C:12-1b(2), a third-degree crime (count one); possession of a weapon for an unlawful purpose, contrary to N.J.S.A 2C:39-4a, a second-degree crime (count two); aggravated assault against Victor Diaz, contrary to N.J.S.A 2C:12-1b(2), a third-degree crime (count three); possession of a weapon for an unlawful purpose, contrary to N.J.S.A 2C:39-4a, a second-degree crime (count four); and unlawful possession of a weapon, contrary to N.J.S.A 2C:39-5b, a third-degree crime (count five).

In a joint trial, each defendant was found not guilty on both counts one and three charging aggravated assault; however, each defendant was found guilty on both counts one and three of the [137]*137lesser-included offense of pointing a firearm, in violation of N.J.S.A. 2C:12-lb(4), a fourth-degree crime. On counts two and four, each defendant was found not guilty of possession of a weapon for an unlawful purpose to use it unlawfully against the property of the alleged victims but found guilty of possession of a weapon with a purpose to use it unlawfully against the person of each victim. Each defendant was also acquitted on count five charging unlawful possession of a weapon.1

At sentencing, the trial judge merged defendant’s pointing a firearm convictions into the convictions for possession of a weapon for an unlawful purpose and then sentenced defendant to a custodial term of ten years with a five-year period of parole ineligibility. The sentences on counts two and four were to be served concurrently with each other. Appropriate statutory penalties payable to the Violent Crimes Compensation Board were also imposed.

On appeal, defendant raises seven points of error:

POINT I
THE TRIAL COURT COMMITTED PLAIN ERROR AND COMPROMISED DEFENDANT’S RIGHT TO FULL APPELLATE REVIEW BY PRESIDING OVER A TRIAL WHICH DID NOT TRANSCRIBE SIDEBAR CONFERENCES (NOT RAISED BELOW)
(A)
OFF THE RECORD SIDEBAR CONFERENCES WHICH ARE NOT THE SUBJECT OF ANY SUBSEQUENT STATEMENT’S [sic] OR CLARIFICATIONS BY THE COURT.
(B)
OFF THE RECORD SIDEBAR DISCUSSIONS WHICH WERE FOLLOWED BY ATTEMPTED CLARIFICATIONS AND SUPPLEMENTAL STATEMENTS.
[138]*138(C)
SINCE THE OMITTED PORTIONS OF THE RECORD, WHETHER SUPPLEMENTED OR NOT, RELATE TO ISSUES RAISED ON APPEAL, THE COURT’S PROCEDURE DURING TRIAL NOT TO RECORD SIDEBAR CONFERENCES REQUIRES REVERSAL OF DEFENDANT’S CONVICTION AS PLAIN ERROR. (NOT RAISED BELOW)
POINT II
ADMISSION OF EVIDENCE OF DEFENDANTS ALIAS WAS IMPROPER AND SO PREJUDICIALLY UNFAIR AS TO HAVE DEPRIVED DEFENDANT OF A FAIR TRIAL.
(A)
EVIDENCE OF DEFENDANTS ALIAS WAS NOT MATERIAL TO PROOF OF ANY OF THE CHARGED CRIMES.
(B)
EVEN IF MATERIAL AND RELEVANT, THE PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY PREJUDICE AND DEFENDANT’S ALIAS SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403. POINT III
ADMISSION OF THE NOVEMBER 16, 1994 STATEMENT OF VICTOR DIAZ AND JOSE RODRIGUEZ AS PRIOR INCONSISTENT STATEMENTS WAS REVERSIBLE ERROR.
(A)
THE COURT ERRED IN ADMITTING VICTOR DIAZ’S STATEMENT AS A PRIOR INCONSISTENT STATEMENT BECAUSE DIAZ’S TRIAL TESTIMONY WAS “INCONSISTENT” WITH THE STATEMENT.
(B)
THE COURT ERRED IN ADMITTING THE STATEMENT OF JOSE RODRIGUEZ AS A PRIOR INCONSISTENT STATEMENT BECAUSE THE STATE FAILED TO ESTABLISH THE “RELIABILITY’ OF THE STATEMENT BY A PREPONDERANCE OF THE EVIDENCE.
POINT IV
DEFENDANT’S ABILITY TO ENGENDER A REASONABLE DOUBT WAS UNDULY RESTRICTED BY THE TRIAL COURT. (NOT RAISED BELOW)
POINT V
[139]*139THE COURT ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE’S CASE.
POINT VI
THE PROSECUTOR’S SUMMATION SUBSTANTIALLY PREJUDICED DEFENDANT’S RIGHT TO HAVE THE JURY FAIRLY EVALUATE THE EVIDENCE. (RAISED IN PART BELOW)
(A)
THE PROSECUTOR IMPROPERLY VOUCHED FOR THE CREDIBILITY OF THE POLICE. (RAISED BELOW)
(B)
THE PROSECUTOR MISLED THE JURY IN URGING AN UNSUPPORTABLE CONSIDERATION OF THE PRIOR INCONSISTENT STATEMENTS ADMITTED DURING TRIAL. (NOT RAISED BELOW)
(C)
THE PROSECUTOR IMPROPERLY INVITED THE JURY TO DECIDE DEFENDANT’S GUILT ON THE BASIS OF SOCIETAL DUTY. (NOT RAISED BELOW)
POINT VII
THE IMPOSITION OF A TEN (10) YEAR CUSTODIAL SENTENCE WITH FIVE (5) YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION BY THE SENTENCING COURT.
(A)
THE COURT FAILED TO ARTICULATE ANY REASON FOR IMPOSING A SENTENCE IN EXCESS OF THE PRESUMPTIVE SEVEN (7) YEAR TERM FOR CRIMES OF THE SECOND DEGREE.
(B)
THE COURT FAILED TO ARTICULATE ANY REASON FOR IMPOSING A FIVE (5) YEAR PERIOD OF PAROLE INELIGIBILITY.

We have carefully reviewed the record in light of these contentions and conclude that our intervention is unwarranted. The arguments raised in Points II, III, IV, V, VI, and VII are without merit. R. 2:ll-3(e)(2). As to those points, we add additional [140]*140comment. The balance of this opinion focuses on Point I of defendant’s appeal.

I

On November 15, 1994, at approximately midnight, Victor Diaz and Jose Rodriguez were installing a car radio into a Volkswagen at 18th Street in Paterson when a yellow Cadillac stopped in the street and two men with black handguns in their hands exited the vehicle. One man fired approximately four shots toward the Volkswagen. The other man held his gun in the air and shouted, “That’s not them.” The men reentered the Cadillac and were driven away by a third individual.

On November 16, 1994, Diaz gave a statement at the detective bureau. He stated, “I saw two guys jump out of the yellow car. The driver stayed in the car. As we were looking I saw the guy I know as Marijuana with a gun and it was pointed at us----” Diaz identified a picture of defendant Jose Paduani as “Marijuana.” When questioned as to the identity of the other gunman, he stated, “I know him as Trouble. He is Marijuana’s brother.”

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Cite This Page — Counsel Stack

Bluebook (online)
704 A.2d 582, 307 N.J. Super. 134, 1998 N.J. Super. LEXIS 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-paduani-njsuperctappdiv-1998.