State v. Rosa

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-10-1443. Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, of counsel and on the brief). Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Paszkiewicz, of counsel and on the brief). PER CURIAM

Defendant Kelvin Rosa appeals from his convictions, after a jury trial, for attempted murder and other crimes, all arising from his shooting of a police officer during a burglary. He argues:

POINT I: DEFENDANT'S RIGHTS WERE VIOLATED WHEN THE TRIAL COURT ERRONEOUSLY ADMITTED UNSANITIZED OTHER CRIMES EVIDENCE.
POINT II: THE TRIAL COURT ERRED WHEN IT REFUSED TO HOLD A HEARING TO CONSIDER WHETHER CODEFENDANT PABLO ACEVEDO'S AFFIDAVIT, WHICH INDICATED HIS WILLINGNESS TO TESTIFY ABOUT DEFENDANT'S INNOCENCE, WARRANTED A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.
POINT III: DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION [WAS] VIOLATED BY THE DEFENDANT'S INABILITY TO SEE THE KEY STATE WITNESS MARIANO NUNEZ DURING THE ENTIRETY OF MR. NUNEZ'S TESTIMONY.
POINT IV: THE TRIAL JUDGE ERRONEOUSLY ASSUMED DEFENDANT'S GUILT OF UNPROVEN ALLEGATIONS AND INAPPROPRIATELY CONSIDERED THESE ALLEGATIONS WHEN SENTENCING THE DEFENDANT (Not raised below).
POINT V: THE TRIAL JUDGE ERRED IN IMPOSING THE MAXIMUM SENTENCE ON THE DEFENDANT BASED ON UNPROVEN ALLEGATIONS (Not raised below).

We have considered these arguments in light of the record and applicable legal standards. We affirm the convictions but remand for re-sentencing.

I.

On October 3, 2006, a grand jury indicted defendant with co-defendants Christian Nunez-Torres, Justo Dilone, Leonardo Jiminez, and Pablo Acevedo, charging them with various crimes committed in connection with the burglary of a check cashing business in Willingboro, on October 14, 2004 (the Willingboro burglary), during which Willingboro police officer Richard Rodgers was shot. Defendant was indicted on charges including: second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2(a)(1) and 2C:18-2(a)(1) (count one); second-degree burglary while purposely, knowingly, or recklessly inflicting, or attempting to inflict, or threatening to inflict bodily injury on another, N.J.S.A. 2C:18-2(a)(1) and (b)(1) (count two); second-degree burglary while armed with a deadly weapon, N.J.S.A. 2C:18-2(a)(1) and (b)(2) (count three); first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1) and (b) (count four); first-degree robbery with an attempt to kill, or purposely inflict or attempt to inflict serious bodily injury upon another, N.J.S.A. 2C:15-1(a)(1) and (b) (count five); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1) (count six); second-degree aggravated assault with attempt to cause serious bodily injury, or causing such injury purposely or knowingly, or under circumstances manifesting extreme indifference to the value of human life recklessly causing such injury, N.J.S.A. 2C:12-1(b)(1) (count seven); third-degree aggravated assault with attempt to cause, or purposely or knowingly causing bodily injury to another with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count eight); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count nine); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count ten); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count eleven); and receiving stolen property, N.J.S.A. 2C:20-7(a) (count twelve).

On the State's motion, the court later dismissed counts eight, ten, eleven and twelve.

Prior to trial, the court granted the State's motion under N.J.R.E. 404(b), to admit "other crimes" evidence to establish defendant's identity as the individual who shot Rodgers during the Willingboro burglary. The court ruled that the State could introduce evidence relating to the burglary of Amaro Food Enterprises (Amaro Foods) in North Bergen, which occurred the night before the Willingboro burglary, during which a nine millimeter Sig Sauer handgun was stolen and later used to shoot Rodgers during the Willingboro burglary. The court also allowed the State to introduce evidence relating to a February 3, 2005 eluding incident in Paramus, during which the gun stolen from Amaro Foods and used in the Willingboro burglary was discarded from a vehicle being pursued by police, in which defendant was a passenger. The court later denied defendant's motion for reconsideration of these rulings.

As a result of the court's rulings, the following facts were adduced at defendant's second trial.

Defendant's first trial occurred in September 2011, and ended in a hung jury. Defendant's second trial took place in December 2011.

During the night of October 12, 2004, Amaro Foods was burglarized. The wires to the alarm system had been cut, alarm boxes were removed from the side of the building, the main office was ransacked, a rifle, two shotguns, and a nine millimeter Sig Sauer handgun were stolen, along with $5000 to $7 000 in cash. No DNA or viable fingerprints were recovered from the scene.

The following night, at about 11:15 p.m., Rodgers was dispatched to the Willingboro United Check Cashing store to investigate an activated alarm. Upon arrival, Rodgers exited his vehicle and walked to the rear of the store, where he observed the rear door had been pried upward from the bottom, "like a can of sardines," and a pallet was positioned perpendicular to the wall. He was sure someone had broken into the business, but was unsure whether they remained inside. He contacted his dispatcher for additional officers, drew his weapon, and began backing out of the alleyway. As he reached the corner of the building gunshots were fired at him, with one hitting him in the leg, a second bouncing off the wall and hitting him in the back of the hand, and a third bouncing off the wall and hitting him in his vest. "After that there [were] about six or seven more shots that were fired and [Rodgers] could feel they were hitting the wall that [he] was standing next to because [he] could feel the mortar . . . bouncing off the wall and hitting [him]."

Rodgers could not see who was firing at him, and he had no idea where the shots were coming from. He called into the dispatcher that he was being fired at and had been hit, and then took cover behind a bush. He heard several more shots fired, but they sounded as though they were coming from further away than the initial barrage. When back-up officers arrived, Rodgers was taken to the hospital and treated for his injuries.

An employee from the check cashing store testified approximately $629 had been taken from a drawer, the telephone lines and wiring to three security cameras had been cut, the control panel to the alarm system had been pulled off the wall, and the siren was on the ground smashed. In the store, police found a pry bar, an acetylene torch and tank, and a walkie-talkie, which did not belong to the business. Along a trail running from the back of a strip mall into the woods, police found nine millimeter bullets, six spent cartridge cases, and a bag containing wire cutters and the stolen money. However, they did not recover any fingerprints or DNA.

Approximately four months later, on February 3, 2005, Paramus Police Officer Brian McGovern stopped and spoke to Nunez-Torres, who was standing alone at 1:00 a.m., outside a furniture store on Route 4, in a "high crime area, [with] lots of commercial burglaries." Nunez-Torres, who appeared nervous, stated that he was waiting for his brother, who had left him there to get something to eat at a nearby restaurant. However, when McGovern spoke to the restaurant manager, she reported that the restaurant had no patrons in the last two hours. McGovern then "checked . . . for any outstanding warrants, any criminal history," with "negative results," so he "cut [Nunez-Torres] loose" and continued his patrol.

Shortly thereafter, McGovern observed a truck driving in an erratic fashion along Route 4. He initiated a traffic stop, but when he approached the vehicle on foot, the driver made an abrupt U-turn and drove off. As McGovern pursued the truck along Paramus Road, he observed multiple items being thrown out of the passenger side window. Later investigation resulted in the recovery from alongside the roadway of "burglary tools, in particular crow bars, two-way radios," bolt cutters, and screwdrivers, as well as a handgun.

A video from McGovern's patrol car was shown to the jury, depicting what he observed.

At the direction of his dispatcher, McGovern ended his pursuit on the New Jersey Turnpike. Shortly afterward, Bergen County Police Officer Leshik Lorenc, who was on duty with his assigned K-9 and had been involved in the pursuit, observed that the truck crashed near a New Jersey Turnpike exit. A motorist flagged down the officer and indicated that people had run into the swamps adjacent to the highway. Lorenc deployed his dog, and he and other officers began tracking the truck's three occupants. Eventually, the officers came upon defendant and Mariano Nunez and placed them under arrest. Leonardo Jiminez was arrested a distance away, in a hotel parking lot. The three were held in Bergen County Jail until they were released on bail.

Subsequent investigation of the handgun recovered from the side of Paramus Road revealed that it was the gun that had been stolen from Amaro Foods and used to shoot Officer Rodgers during the Willingboro burglary. Accordingly, in September 2005, Nunez was arrested and brought to Burlington County. At that time, he told the police about his involvement in the Amaro Foods and Willingboro burglaries, and how the gun was discarded during the police pursuit in Paramus. He also identified the other burglary participants.

When Nunez spoke to investigators in September 2005, he did not first obtain an offer of leniency in exchange for his testimony.

Nunez testified at defendant's trial pursuant to a plea agreement under which he was to receive a ten-year sentence, with an eighty-five percent period of parole ineligibility. Nunez testified that in 2004, in addition to his construction business, he engaged in burglaries of commercial establishments, using his knowledge of alarm systems and his access to power tools. All of Nunez's burglaries proceeded in "the same way." Specifically: he chose businesses located away from residential areas, along roadways that would prevent the police from trapping him; the total number of people he brought with him would depend upon the size and type of business targeted; participants were assigned roles, with some serving as lookouts and getaway drivers, and others breaking into and removing items from the business; and participants would communicate with each other using walkie-talkies or cell phones. Nunez's role was to plan the burglaries, disable the alarm systems, and use an acetylene torch to crack any safes.

Nunez became friends with defendant when, after meeting him at a barber shop in Jersey City, he brought defendant into his burglary ring. He admitted to planning the Amaro Foods and Willingboro burglaries, and stated defendant participated in both. The prosecutor asked whether defendant also participated in an "attempted commercial burglary at a store" in Paramus, and Nunez said yes.

With respect to the Amaro Foods burglary, Nunez stated he followed his normal procedures. The day of the burglary, he went to the business and asked for a job application, so that he could see the layout of the business, where the alarm and office were located. On the night of the burglary, he went to the business with defendant, Nunez-Torres, Dilone, and "another individual." Nunez-Torres and Dilone served as the lookouts. Nunez cut the alarm and he, defendant, and the other individual climbed onto the roof, broke a window, and entered an adjacent business. They then broke into Amaro Foods by prying open a steel door. They stole money from a drawer, and also stole two shotguns, a rifle, and a nine millimeter handgun. Nunez found the handgun, but stated defendant took it for himself, and the group divided up the money and other weapons.

Regarding the Willingboro burglary, Nunez stated he planned it with Nunez-Torres and defendant during a trip to Philadelphia. He liked the location because there were no houses around, and there was a lake in the back, which would make it hard for the police to catch them if anything went wrong.

The burglary was executed by Nunez, Nunez-Torres, defendant, Jiminez, Dilone, and Acevedo. Dilone and Nunez-Torres served as lookouts, while the others broke into the business. The group brought with them walkie-talkies, flashlights, crowbars, wire strips to cut wires, and an acetylene torch and tanks; and defendant brought the gun he had taken from Amaro Foods. Nunez disabled the outside alarms and cameras, and the group waited a while to see if the police would respond. When no one came, Nunez, Jiminez, and Acevedo peeled up the back door, with Acevedo breaking off the lock. Nunez, defendant, Jiminez, and Acevedo entered the building. Nunez cut more wires, while Jiminez retrieved the acetylene tanks. Nunez found a safe bolted to the floor, and as he began breaking into it he heard three or four gunshots. At the time, Jiminez and Acevedo were inside the building with Nunez, while defendant was outside.

A representative of the check cashing business testified the lock was intact after the burglary. Defense counsel argued Nunez's testimony to the contrary suggested he never entered the check cashing building; rather, "[h]e was the guy that was outside. He was the guy that shot that police officer and now he's trying to pin it on Kelvin Rosa."

As soon as he heard the gunshots, Nunez ran out of the store, where he observed a police car, and defendant in the bushes, reloading the gun. Nunez asked defendant what he had done, and defendant responded, "if I didn't shoot him you all was gonna get caught inside there." Nunez then grabbed defendant, and the group ran toward the lake, swam across, and were picked up by Nunez-Torres on the other side. During the getaway, Nunez repeatedly asked defendant why he had shot his gun, and defendant repeatedly stated that if he had not shot the officer they all would have gone to jail, to which Nunez responded "you should have let them lock us up." According to Nunez, it was as if defendant was "in some kind of trance, like he's not himself," and he did not push the issue because he was worried defendant might shoot him as well.

Nunez had subsequent conversations with defendant, in which they expressed their shared belief that defendant had killed the officer. Nevertheless, according to Nunez, defendant continued to carry the gun.

Four months later, in February 2005, Nunez planned to burglarize a Nextel store located on Route 4 in Paramus, along with Nunez-Torres, defendant, and Jiminez. The men followed "the same procedures" as with the other burglaries, with Nunez-Torres acting as the lookout from a nearby restaurant.

According to Nunez, the planned burglary was "a mess" from the beginning due to snowy conditions, and it ultimately was aborted because Nunez-Torres reported that police were in the area. Things went from bad to worse when, as Nunez drove to pick up Nunez-Torres, he was pulled over by a police officer. Nunez did not cooperate with the stop, and drove off, with defendant in the front passenger seat and Jiminez in the back.

During the pursuit, defendant threw burglary tools out of the window, including crowbars and walkie-talkies. Pressing Nunez to address the gun, the prosecutor asked, "at some point while the officers were chasing you, did the gun come out?", and Nunez responded "Yes." The prosecutor next asked, "And what was done with the gun?" to which Nunez began his answer, "Well, when the cop was close to us [defendant] pulled the gun, cock[ed] it —." At that point, the prosecutor interrupted and asked whether defendant had thrown the gun out of the window and Nunez, responded "Yes."

Continuing to elude the police on the New Jersey Turnpike, Nunez swerved off the road and into a fence, where the truck engine died. He and defendant then ran off into the swamp and were apprehended.

After their arrests, Nunez and defendant were taken to the Bergen County Jail, where they had daily discussions about what would happen if police found the gun. After they were bailed out of jail, defendant told Nunez that he was leaving for the Dominican Republic "because they gonna match that gun and they gonna know I killed a cop."

On cross-examination, Nunez admitted having once said that Dilone had a gun on the night of the Willingboro burglary. However, he explained on re-direct that Dilone only had a BB gun, while it was defendant who had the nine millimeter. Nunez also admitted he told police his fingerprints might be on the gun. And when the police suggested that he might have been the shooter, stating to him, "there's no reason why anybody else should say that you shot the cop," his response was "they got to prove it," rather than a flat denial.

Defendant was not arrested in connection with the Willingboro burglary until November 2008. He was found in the Dominican Republic, where he had obtained a Dominican driver's license, union card, bank card in the name of Kelvin Maria Martinez, and was working as a bus driver.

The Dominican officer who arrested defendant testified that he advised defendant of his rights, the reason for his arrest, and that, as they drove to the police station, defendant stated that he "had to" fire a gun, but he "had not injured anyone" and no one had died. Defendant also expressed that he was afraid to come back to New Jersey, but knew he would be arrested eventually.

Defendant testified on his own behalf, denying any involvement in the Amaro Foods and Willingboro burglaries, or in any attempted burglary in Paramus. He also denied any friendship with Nunez, but stated he sometimes worked for Nunez's construction business, which is what he was doing on February 3, 2005. That day he worked on a construction job in Jersey City, which continued until about 10:00 p.m., and afterward he agreed to travel with Nunez to drop Jiminez at his home in the Bronx. During their trip, Nunez dropped his cellphone and was swerving on the road as he reached down to pick it up. After the police pursued Nunez, he refused to cooperate, explaining to defendant that his driver's license was suspended and he had no insurance.

Defendant denied any knowledge as to why Nunez-Torres was standing outside the restaurant in Paramus that night. He also denied throwing anything from the vehicle during the pursuit, and stated he did not see anything being thrown. As for why he ran from the police when the truck crashed, he explained that he feared he would be shot. He also denied anything improper in his return to the Dominican Republic. Defendant had never been arrested in the United States "not even a ticket, not even a parking ticket," so he did not understand that after making bail he was not allowed to travel. He stated that in March or April 2005, he traveled to the Dominican Republic because his father was hospitalized, and he remained in that country without returning to the United States because he wanted to help his father, as his mother and oldest sister had died in November 2004. He also had six children in the Dominican Republic, but he admitted leaving four small children in the United States.

In summation, defense counsel suggested Nunez-Torres had been "casing" a prospective burglary job on behalf of his brother, and that Nunez-Torres's phone call to Nunez is what had caused Nunez to swerve while driving, leading to the motor vehicle pursuit.

Upon his arrest in the Dominican Republic, he did not contest extradition. He denied he was advised of the charges against him, or that he told the Dominican officer that he had shot someone. He believed Nunez implicated him in the shooting due to jealousy over his involvement with a woman Nunez had once dated, claiming Nunez had warned him that he was "going to pay one way or another."

On this evidence, the jury found defendant guilty of conspiracy to commit burglary (count one), armed burglary (count three), armed robbery (count four), attempted murder (count six), aggravated assault (count seven), and theft by unlawful taking (count nine). On February 2, 2012, the court merged the armed robbery and aggravated assault convictions (counts four and seven) into the attempted murder conviction (count six) and sentenced defendant to twenty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court merged the conspiracy and theft by unlawful taking convictions (counts one and nine) into the burglary conviction (count three), and sentenced defendant to a consecutive term of ten years, also subject to NERA. The court also ordered defendant to serve a period of parole supervision after his incarceration.

In sentencing defendant, the court found aggravating factors one, the nature and circumstances of the offense, and the role of the actor therein, N.J.S.A. 2C:44-1(a)(1), three, the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), eight, that defendant committed the offense against a police or other law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority, N.J.S.A. 2C:44-1(a)(8), and nine, the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found mitigating factor seven, that defendant had no history of prior delinquency or criminal activity, N.J.S.A. 2C:44-1(b)(7), and consented to a reduction of the primary parole eligibility date pursuant to N.J.S.A. 30:4-123.67.

At the same time, in issuing its sentencing decision, the court referenced the Amaro Foods burglary, and the attempted burglary of the store in Paramus, and also cited the fact that defendant had shot at police officers during the Paramus eluding incident. In particular, in finding aggravating factor one, the court noted:

the willingness of [defendant] to shoot at police officers as evidenced by the Willingboro incident and the subsequent incident in North Jersey. The Court notes here that the subsequent shootings in North Jersey were not evidential in this case before the jury. Pursuant to the Evidence Rule 404, they were removed and redacted from the video that was shown to the jury. Nonetheless, the Court is aware that there were videotaped recordings of the shooting.

Similarly, in finding aggravating factor three, the court cited "the subsequent burglary and the subsequent shooting at police officers," along with "the sophistication of the burglary group with which the defendant was involved." Finally, in finding aggravating factor nine, the court concluded defendant had "been undeterred by his experience in Willingboro [as] confirmed . . . by his conduct in Paramus."

At the sentencing hearing, defendant presented letters and an affidavit from Acevedo, in which Acevedo stated defendant was not guilty, and he had been pressured by detectives to implicate defendant in the crimes. The court declined to consider the documents, stating that they should be presented on post-conviction relief (PCR).

This appeal followed.

II.

Defendant first argues the court erred in admitting highly prejudicial unsanitized other crimes evidence, which was irrelevant to proving identity. In particular, he complains about the admission of: detailed testimony regarding the Amaro Foods burglary; the attempted burglary of a Nextel store in Paramus; and details regarding the Paramus eluding that "had absolutely no relevance to the defendant's Willingboro charges," including that defendant cocked the gun during the police pursuit, and events that occurred after the gun was thrown out of the vehicle.

We agree that some of the evidence complained of should not have been allowed, at least not during the prosecutor's direct case. However, we conclude that any error was harmless.

Before defendant's first trial, the State moved under N.J.R.E. 404(b), to admit evidence relating to the Amaro Foods burglary and the Paramus eluding incident in order to prove defendant's identity as the shooter during the Willingboro burglary. Evidence admitted during the Rule 104 hearing mirrored the trial evidence, except that Nunez testified at the hearing that defendant had shot at a police officer during the Paramus eluding.

The court granted the State's motion. Addressing the four-factor test for admissibility, under Rule 404(b), the court first found that evidence of the Amaro Foods burglary and the Paramus eluding was relevant to proving the identity of the perpetrators in the Willingboro burglary. In this regard, the court also noted:

[t]here is no other substantial proof to establish identity. Other than the testimony of the cooperating codefendants whose credibility will be severely attacked at trial given their 10 year, 85 percent plea agreements, there is no other substantial corroborating evidence to establish identity other than the gun.

The court found the second factor was unimportant in the context of this case. As to factor three, the court found the evidence of defendant's involvement in the three incidents was "clear and convincing." As to factor four, the court found the probative value of the evidence substantially outweighed the prejudice.

Nevertheless, acknowledging the prejudicial nature of the evidence, the court held it would have to be sanitized, with a limiting instruction issued. In particular, the court ruled there could be no testimony regarding defendant's alleged intent to shoot a police officer during the Paramus eluding incident, or about any shots fired during that incident, stating:

The testimony relating to [defendant's] intention to shoot Officer McGovern immediately after the stop that occurred on February 3rd, 2005, may not be introduced in any way. Mr. Nunez's testimony in that regard must not, will not be permitted and a mistrial will be caused if that testimony comes out. The prejudice to [defendant] with the admission of that testimony is immense and it is not relevant to the weapons identity in this case.
There shall also be no testimony relating to gunshots that occurred purportedly during the Paramus eluding. I listened to the [mobile video recording] several times yesterday on the record and I could not hear the gunshots. The officer himself McGovern couldn't testify that gunshots occurred but, more importantly, the prejudice inherent in that testimony would be substantial and would in my view outweigh the probative value of that testimony.

In defendant's second trial, the Amaro Foods burglary and the Paramus attempted burglary and eluding were central to the prosecution's case. The prosecutor spent much of his opening statement detailing those incidents. Moreover, the prosecutor introduced detailed evidence regarding the Amaro Foods burglary, including how it was planned and executed, and items that were taken in addition to the handgun at issue. Regarding the incident in Paramus, the prosecutor elicited more information than simply that the gun was recovered after a police pursuit, including: that the incident was preceded by an attempted burglary of another store; that during the police pursuit burglary tools were thrown out of Nunez's truck and later recovered alongside the roadway; that during the pursuit defendant cocked the gun; and that after the truck crashed, the police pursued defendant and Nunez through the swamps adjacent to the New Jersey Turnpike.

At trial, defense counsel objected in particular to the admission of extraneous Paramus evidence as outside the scope of the Rule 404(b) ruling and unduly prejudicial to defendant. For the most part, the court overruled those objections, except it did not permit Nunez to testify regarding details of the attempted burglary in Paramus. The court also denied defendant's motion to dismiss at the close of the State's case to the extent it was based upon alleged violations of N.J.R.E. 404(b).

The court issued the following limiting instruction during the State's case, after several witnesses had testified about the Amaro Foods and Paramus incidents:

Ladies and gentlemen, during the course of the trial, the State has introduced evidence concerning burglaries or attempted burglaries of Amaro Foods in North Bergen and I think a Nextel store in Paramus. Normally, such evidence is not permitted
under our rules of court. Our rules specifically exclude evidence that a defendant committed another crime or another wrong because it has the tendency to suggest that because a person may have done something wrong in the past they are, therefore, guilty of the present offense. However, our rules do permit the introduction of such testimony for limited purposes. Here it has been allowed for the very limited purpose of permitting the State to demonstrate or attempt to prove possession of the handgun involved and the identity of the person who possessed it. You may not use that evidence to decide that [defendant], if you find that he possessed or that he was involved in the Amaro Foods or at the Nextel store that he's, therefore, guilty of the present offense. Now it's a fine line but it's a fair line. We simply don't find people guilty because of their prior wrongs and the Court has permitted evidence of the Amaro burglary and the Nextel burglary for the limited purpose of allowing the State to attempt to prove possession of the weapon and the identity of the person who possessed it. At the conclusion of the trial when the Court instructs you, it will give you a similar instruction in a little more detail.

In its final charge to the jury, the court stated:

The State has introduced evidence that [defendant] participated in a commercial burglary of Amaro Foods in North Bergen on October 13, 2004. As you will recall, it is alleged that the handgun used to shoot Officer Richard Rodgers was stolen from the business. In addition, the State has introduced evidence that [defendant] was an occupant of a vehicle that was involved in a pursuit in Paramus on February 3, 2005. Again, it is alleged that the handgun stolen from Amaro Foods was discarded from the
vehicle in which [defendant] was an occupant.
Normally, such evidence is not permitted under our rules. Our rules specifically exclude evidence that a defendant has committed other crimes, or wrongs or acts when it is offered only to show that he had a disposition or a tendency to do wrong and, therefore, must be guilty of the charges before the [c]ourt. Before you can give any weight to this evidence, you must be satisfied that the defendant committed the other crime, wrong or act. If you are not so satisfied, you may not consider it for any purpose.
Our rules do permit, however, evidence of other crimes, wrongs or acts when the evidence is used for a very specific and narrow purpose. In this case, evidence of both the North Bergen burglary and the Paramus attempted burglary and eluding have been admitted as to the issue of identity or possession of the gun. That is, the evidence has been offered to suggest to you that [defendant] was involved in the Willingboro matter given the fact that the same gun used to shoot Officer Rodgers was allegedly in his possession in the North Bergen burglary and during the incident in Paramus.
Whether this evidence does, in fact, assist you in determining the identity of those involved in the Willingboro matter is for you to decide. You may decide that the evidence does not assist you and is not helpful at all. In that case, you must disregard the evidence. On the other hand, you may find or decide that the evidence does assist you in determining the identity of the person who possessed the gun and used it for that specific purpose.
You may not use this evidence to decide that [defendant] has a tendency to commit crimes or is a bad person. That is, you may not decide that just because the defendant allegedly committed other crimes, or wrongs, that he must be guilty of this charge. The [c]ourt has admitted the evidence only to assist you in determining the identity of the individuals involved in the Willingboro matter. You may not consider it for any other purpose and may not find the defendant guilty simply because the State has offered evidence that he committed another crime or wrong or act.

We review the court's evidentiary rulings for an abuse of discretion. State v. Harris, 209 N.J. 431, 439 (2012); State v. Gillispie, 208 N.J. 59, 84 (2011); State v. Marrero, 148 N.J. 469, 483-84 (1997). We first turn our attention to defendant's argument regarding the court allowing testimony about the other robberies and the eluding.

The admission of other crime evidence is governed by N.J.R.E. 404(b) which states:

Except as otherwise provided by Rule 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as 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.

The rule is one of exclusion rather than one of inclusion. Gillispie, supra, 208 N.J. at 85; Marrero, supra, 148 N.J. at 483.

Trial courts must apply a four-part test when determining whether other crimes evidence should be admitted:

1. The evidence of the other crime must be admissible as relevant to a material issue;
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.
[State v. Cofield, 127 N.J. 328, 338 (1992) (citation and internal quotation marks omitted).]

The second prong may be eliminated when it serves no beneficial purpose. State v. Herrerra, 211 N.J. 308, 340 (2012); State v. Barden, 195 N.J. 375, 389 (2008).

The most difficult part of the test is the fourth prong, balancing relevance and undue prejudice. Gillispie, supra, 208 N.J. at 89-90. By its very nature, other crimes evidence is inflammatory and capable of prejudicing the jury against a defendant. Id. at 85. Therefore, trial courts must be careful to limit the evidence to what is necessary to prove a disputed fact. Marrero, supra, 148 N.J. at 482; State v. Stevens, 115 N.J. 289, 303 (1989). "[T]o reduce the inherent prejudice in the admission of other-crimes evidence . . . trial courts must 'sanitize the evidence when appropriate.'" Gillispie, supra, 208 N.J. at 90 (quoting Barden, supra, 195 N.J. at 390); State v. Rose, 206 N.J. 141, 161 (2011); State v. Collier, 316 N.J. Super. 181, 195 (App. Div. 1998), aff'd o.b., 162 N.J. 27 (1999). In addition, courts must carefully instruct jurors as to the permitted and prohibited uses of the evidence, both at the time the evidence is admitted and in the final charge, with sufficient factual context so that jurors may understand the distinction to which they are being asked to adhere. Gillispie, supra, 208 N.J. at 92-93; Marrero, supra, 148 N.J. at 495.

Applying these legal standards, we find no abuse of discretion in the court's pretrial ruling. The court correctly ruled that some evidence relating to the Amaro Foods burglary and the Paramus eluding was relevant and permissible to prove defendant's identity as the shooter in the charged crimes out of Willingboro. See, e.g., Gillispie, supra, 208 N.J. at 86 ("If a defendant can be connected to a weapon . . . used in a prior criminal transaction, it can serve to identify him or tie him to a similar event."); State v. Carswell, 303 N.J. Super. 462, 471 (App. Div. 1997) (finding evidence of defendant's prior possession of gun relevant to proving his use of gun in charged crimes). No other evidence existed to establish defendant's possession of the gun. Moreover, the evidence submitted at the Rule 104 hearing was sufficient to establish the third prong of the Cofield test. See, e.g., State v. Darby, 174 N.J. 509, 520-21 (2002). Finally, as to the fourth factor, we agree that the probative value of a limited amount of evidence regarding both the Amaro Foods burglary and the Paramus eluding, sufficient to place the gun in the hands of defendant, substantially outweighed any risk of undue prejudice.

On the other hand, we agree with defendant that too much extraneous evidence, unnecessary to proving identity, was admitted by the trial judge. In other words, the evidence was insufficiently sanitized.

In particular, it was unnecessary for the purpose of proving identity for the court to admit as evidence the details of the Amaro Foods burglary, including how the burglars obtained entry into the business, and to items stolen other than the gun subsequently used to shoot Officer Rodgers. It would have been sufficient to admit evidence that a burglary had occurred, that defendant had participated in the burglary, and that defendant took the gun in question. See, e.g., Gillispie, supra, 208 N.J. at 91-92 (finding that the court erred in admitting "unduly prejudicial evidence of the details" of a different robbery, because "[t]he fact that the gun used in the. . . shooting was the same gun used in [other] murders, coupled with [defendant's] admission to its possession while in custody . . ., would have sufficed to prove identity . . . ."); State v. Hardaway, 269 N.J. Super. 627, 629-31 (App. Div. 1994) (holding defendant's use of gun in robbery three weeks after charged crime was relevant to proving identity, but State did not need testimony from victims to describe details of crime).

Additionally, with respect to the Paramus eluding incident, it was unnecessary for the purpose of proving identity for the court to allow testimony that: defendant and his cohorts had attempted another burglary that night; Nunez-Torres had been stopped by the police shortly before the eluding incident, in an area with a lot of commercial burglary activity, and this police activity caused the aborting of the planned burglary; during the police pursuit defendant discarded burglary tools from the truck and cocked the gun. It would have been sufficient, on the State's case, to admit evidence that the police officer initiated a traffic stop because the truck was swerving on the road, he pursued the truck when the driver took off, and defendant discarded items from the truck during the pursuit, including the gun in question, which was subsequently found along the roadway. Gillispie, supra, 208 N.J. at 91-92.

We disagree with defendant, however, in our assessment of the prejudice caused by admission of this extraneous evidence. The evidence of defendant's guilt was strong, and included the testimony from Nunez, defendant's presence in the truck with Nunez, Jiminez, and the gun in Paramus, defendant's flight, both into the swamps after the Paramus eluding, and subsequently to the Dominican Republic, and defendant's statement to the Dominican police officer upon his arrest in that country.

By contrast, the testimony about the details of the Amaro Foods burglary was not extensive, and it did not portray defendant as any more dangerous than the other participants, who allegedly took other firearms from the premises. To be sure, it painted defendant as part of a sophisticated burglary ring. However, that could be surmised from the admissible evidence, particularly the detailed planning and execution of the Willingboro burglary.

With respect to the Paramus incident, admission of evidence relating to the aborted burglary, and that burglary tools were discarded from the truck during the police pursuit, also added to the idea that defendant was part of a burglary ring. However, that evidence was not unduly prejudicial in light of the permissible evidence that defendant had participated in the Willingboro burglary. In any event, defendant testified he was merely an occupant of the vehicle, which was being driven to New York in order to drop Jiminez at home after a construction job in Jersey City. Thus, even if evidence of the planned Paramus burglary had not been admitted on the State's direct case, it would have been admissible to rebut defendant's testimony. See State v. Vandeweaghe, 177 N.J. 229, 237-38 (2003); State v. James, 144 N.J. 538, 554 (1996).

The most potentially harmful evidence was Nunez's fleeting testimony defendant cocked the gun during the Paramus eluding. However, this brief allusion to defendant's conduct was cut off by the prosecutor steering Nunez away from any suggestion that defendant had shot at the pursuing officer. That defense counsel did not object to the exchange suggests he did not view it as unduly prejudicial at the time. State v. Frost, 158 N.J. 76, 83 (1999) (finding defense counsel's failure to object to prosecutor's comments "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made").

Finally, we find no error in admission of evidence relating to the police pursuit of defendant and Nunez through the swamps along the Turnpike. The evidence was dramatic. However, we agree with the trial court that defendant's flight, including the lengths to which he was willing to go to evade the police, trekking through freezing water, snow, and ice in frigid winter temperatures, was relevant to his consciousness of guilt. State v. Ingram, 196 N.J. 23, 46 (2008); State v. Mann, 132 N.J. 410, 418-19 (1993).

Thus, while we find some error in admission of other crimes evidence on the State's direct case, we find no harmful error warranting reversal of the judgment. Any harm was addressed by the court issuing detailed and appropriate limiting instructions that the jury is presumed to have followed. State v. Ross, 218 N.J. 130, 152 (2014 ).

III.

Defendant next argues the court erred by refusing to hold a hearing to consider whether Acevedo's affidavit warranted a new trial based on newly discovered evidence. We find no error in the court's decision.

At sentencing, defense counsel provided the court with documents that indicated Acevedo's willingness to testify at defendant's trial. The documents included an affidavit submitted as part of Acevedo's October, 2011 PCR petition, and two letters from Acevedo to defendant, dated October 31, 2011, and November 17, 2011. Counsel represented that defendant had recently provided the letters to him. The court refused to consider the documents, stating they could be addressed during a PCR hearing.

Defendant concedes he did not file a motion for a new trial under Rule 3:20-1, but contends his arguments should have been treated as a motion for that relief. We disagree. If defendant had wanted these documents to be considered, he should have filed a motion pursuant to the rule explaining why they met the standard for newly discovered evidence, with an opportunity for the State to respond.

In any event, on the record presented, it would not have constituted an abuse of discretion to reject such a motion because the information from Acevedo was not "newly discovered." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000).

Evidence is newly discovered and sufficient to warrant the grant of a new trial when it is (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted.
[State v. Nash, 212 N.J. 518, 549 (2013) (citation and internal quotation marks omitted).]

"Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." State v. Ways, 180 N.J. 171, 187-88 (2004).

On their face, and without the benefit of supporting affidavits, the documents submitted would not meet the standard for newly discovered evidence because the Acevedo affidavit was dated October 2011, and submitted as part of Acevedo's petition for PCR, and Acevedo's letters to defendant were dated October and November 2011. Thus, the documents were available at the time of defendant's trial in December 2011. Nash, supra, 212 N.J. at 549-50.

Furthermore, on the limited record before us, which does not contain a full record of Acevedo's prior statements, it is impossible to assess the other elements of a newly discovered evidence claim. Such a record may be developed, should defendant wish to do so, in a petition for PCR.

IV.

Defendant next argues that he was deprived of his constitutional right of confrontation by the prosecutor's positioning while questioning Nunez, which prevented defendant from being able to always observe the witness. U.S. Const. amend VI; N.J. Const. art. I, ¶ 10.

The record reflects that on several occasions during Nunez's testimony, the prosecutor stood in defendant's line of sight, making it difficult for defendant to observe the witness. Each time this occurred, defense counsel objected, and the prosecutor apologized and moved. The court also permitted defendant to move his chair so he could see the witness.

At the close of the State's case, defense counsel moved for dismissal on the basis of the State's interference with defendant's ability to observe Nunez's testimony. Denying the motion, the court stated:

Attorneys move around the court and from time to time [the prosecutor] blocked the defendant's view of the witness stand. Asked to move, [he] moved, and I think later returned to that position. The [c]ourt believes it was totally inadvertent. In any event, it didn't prevent the defendant from hearing the testimony and it didn't stop his attorney . . . from bringing it to the attention of the [c]ourt. The [c]ourt perceives absolutely no harm. It's trivial and it has nothing to do with a fair trial here.
[(Emphasis added).]

Defendant cites no authority holding that inadvertent, short-lived obstructions of a defendant's line of sight, which were corrected by the prosecutor and the court, constitute a deprivation of a defendant's constitutional right of confrontation. Defendant was permitted to see and hear Nunez's testimony, and cross-examine him. Thus, his confrontation rights were not infringed. Maryland v. Craig, 497 U.S. 836, 844-50, 110 S. Ct. 3157, 3162-66, 111 L. Ed. 2d 666, 677-82 (1990); State v. Cabbell, 207 N.J. 311, 328-30 (2011).

V.

Defendant's final arguments relate to sentencing. He claims the trial judge erroneously assumed his guilt of unproven allegations and erred in imposing the maximum sentence based on unproven allegations.

We are constrained to agree. The court imposed the maximum possible sentence of twenty years for the first-degree attempted murder conviction, N.J.S.A. 2C:43-6(a)(1), and imposed a consecutive maximum sentence of ten years for the second-degree burglary conviction. N.J.S.A. 2C:43-6(a)(2).

In imposing the maximum, consecutive sentences, the court relied upon its judicial finding of defendant's guilt in the Amaro Foods burglary, and the Paramus attempted burglary, as well as an unproven allegation that defendant shot at a police officer during the Paramus eluding. Indeed, the court explicitly noted the Paramus shooting in finding aggravating factor one, N.J.S.A. 2C:44-1(a)(1). The court also explicitly noted the attempted burglary and shooting in Paramus in finding aggravating factor three, N.J.S.A. 2C:44-1(a)(3), and it impliedly referenced both the Amaro Foods burglary and the Paramus attempted burglary by "consider[ing] the sophistication of the burglary group with which the defendant was involved." Finally, it explicitly noted the Paramus crimes in finding aggravating factor nine, N.J.S.A. 2C:44-1(a)(9).

The court's reliance on the unproven crimes require that the case be remanded for re-sentencing. See N.J.S.A. 2C:44-4 (definition of a prior conviction); State v. Natale, 184 N.J. 458, 466 (2005) ("We now hold that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee.") (emphasis added). Accord State v. Abdullah, 184 N.J. 497, 505-06 (2005). See also Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed maximum must be submitted to a jury, and proved beyond a reasonable doubt.") (emphasis added); State v. Thomas, 188 N.J. 137, 151-52 (2006) (court's "finding of the fact of defendant's prior convictions" does not violate the Sixth Amendment) (emphasis added).

We disagree with the State's contention that the court merely considered arrest information contained in the presentence report. See State v. Tirone, 64 N.J. 222, 229 (1974) ("[A] defendant's arrest record is a factor which may be considered in the determination of an appropriate sentence so long as the sentencing judge does not infer guilt from charges which have not resulted in convictions."); State v. Green, 62 N.J. 547, 571 (1973) (holding the court may consider arrests but "shall not infer guilt as to any underlying charge with respect to which the defendant does not admit his guilt"); State v. Farrell, 61 N.J. 99, 107 (1972) ("[U]nproved allegations of criminal conduct should not be considered by a sentencing judge."). The court went far beyond considering the fact that defendant had been arrested for other crimes. In assessing the aggravating factors, the court clearly assumed defendant's guilt of unproven crimes.

We also note the court's failure to provide any explanation for the imposition of consecutive sentences. Should the court choose to impose consecutive sentences on remand, it must provide a statement of reasons. See Abdullah, supra, 184 N.J. at 514-15; State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

We affirm defendant's convictions and remand for re-sentencing. 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