Opinion
DOCKET NO. A-5005-13T2 DOCKET NO. A-5204-13T3
06-20-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH L. CODY, a/k/a JOSE CODY, JOSIE L. CODY, JOISE CODY, JOSEPH CODY, LEE CODY, JOSIE CODY, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. VICTOR CODY, a/k/a VICTOR E. CODY, VICTOR M. CODY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Joseph L. Cody, A-5005-13 (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Victor Cody, A-5204-13 (Michael Confusione, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant Joseph L. Cody filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Guadagno, and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-11-2741. Joseph E. Krakora, Public Defender, attorney for appellant Joseph L. Cody, A-5005-13 (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Victor Cody, A-5204-13 (Michael Confusione, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant Joseph L. Cody filed a pro se supplemental brief. PER CURIAM
In these two appeals, calendared back-to-back and consolidated for purposes of this opinion, defendants Joseph and Victor Cody appeal from their judgments of conviction for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(b) (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); and third-degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four), which were entered following a jury trial.
Joseph Cody was sentenced to a twenty-five-year custodial term with eighty-five percent parole ineligibility, and to five years of parole supervision upon release, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge merged counts one, three, and four into count two for sentencing purposes, and imposed a discretionary extended term for persistent offenders under N.J.S.A. 2C:43-7.1(b).
Victor Cody was sentenced to a thirty-year custodial term with eighty-five percent parole ineligibility and to five years of parole supervision upon release, pursuant to NERA. The judge again merged counts one, three, and four into count two and imposed a discretionary extended term for persistent offenders.
On appeal, Joseph Cody raises the following points:
POINT I
THE TRIAL COURT ERRED BY ADMITTING THE SHOWUP IDENTIFICATION WHEN POLICE FAILED TO PROVIDE ANY RECORDING OR DETAILED SUMMARY OF ANY OF THE COMMUNICATIONS WITH THE WITNESS BEFORE, DURING AND AFTER THE SHOW-UP AS REQUIRED BY STATE V. DELGADO. (NOT RAISED BELOW).
POINT II
THE TRIAL COURT ERRED WHEN IT ADMITTED THE VICTIM'S OVERLY SUGGESTIVE AND UNRELIABLE OUT-OF-COURT SHOW-UP IDENTIFICATION OF DEFENDANT.
POINT III
THE TRIAL COURT FAILED TO PROVIDE THE JURY WITH A COMPLETE IDENTIFICATION CHARGE. (NOT RAISED BELOW).
POINT IV
THE NON-PUNJABI SPEAKING OFFICER HAD NO PERSONAL KNOWLEDGE OF THE VICTIM'S PUNJABI
STATEMENTS AND ARE UNQUALIFIED TO TESTIFY ON WHAT THE VICTIM SAID. (NOT RAISED BELOW).
POINT V
THIS COURT MUST REMAND FOR A NEW HEARING BECAUSE THE INTERPRETER AT THE WADE HEARING WAS NOT CERTIFIED TO TRANSLATE THE VICTIM'S NATIVE LANGUAGE OF PUNJABI.
POINT VI
THE PUNJABI INTERPRETER AT TRIAL DID NOT RENDER A WORD-FOR-WORD TRANSLATION OF THE VICTIM'S TESTIMONY AND AS A RESULT, A REMAND FOR A NEW TRIAL IS REQUIRED.
POINT VII
DEFENDANT'S SENTENCE WAS EXCESSIVE SINCE THE TRIAL COURT FAILED TO CONSIDER THE DEFENDANT'S ADMISSION OF RESPONSIBILITY OR EXPRESSION OF REMORSE AND FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS.
Joseph Cody also filed a pro se supplemental brief raising these two additional points:
POINT I, SUPPLEMENTING POINT III OF ASSIGNED COUNSEL'S BRIEF
THE TRIAL COURT FAILED TO PROVIDE THE JURY WITH A COMPLETE IDENTIFICATION CHARGE. SPECIFICALLY, THE CROSS-RACIAL IDENTIFICATION LACKED THE MOST [ESSENTIAL] COMPONENTS OF THE STANDARD MODEL CHARGE.
POINT II
APPELLANT WAS DENIED A FAIR TRIAL, WHEREBY, TRIAL JUDGE IMPROPERLY RESPONDED [TO A] JURY QUESTION WITH INFORMATION NEVER REQUESTED BY JURY.
Victor Cody raises the following points:
POINT 1
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXCLUDE PRETRIAL IDENTIFICATIONS.
POINT 2
THE TRIAL COURT ERRED IN PERMITTING THE AUDIO RECORDINGS OF THE 911 CALL AND DISPATCHES INTO EVIDENCE AT TRIAL.
POINT 3
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.
POINT 4
THE TRIAL COURT'S IDENTIFICATION CHARGE WAS INCOMPLETE (PLAIN ERROR).
POINT 5
IMPROPER OTHER WRONGS OR CRIMES EVIDENCE WAS PERMITTED BEFORE THE JURY, DEPRIVING DEFENDANT OF A FAIR TRIAL ON THE ROBBERY AND GUN CHARGES ACTUALLY AT ISSUE (PLAIN ERROR).
POINT 6
DEFENDANT'S RIGHT TO A FAIR JURY TRIAL WAS INFRINGED BELOW (PLAIN ERROR).
POINT 7
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
POINT 8
DEFENDANT ADOPTS AND INCORPORATES BY REFERENCE ARGUMENTS ADVANCED IN THE BRIEF SUBMITTED BY CO-DEFENDANT JOSEPH CODY IN HIS APPEAL.
I.
On April 20, 2012, Surjit Singh was working as an attendant in a service station at the corner of Frelinghuysen and Meeker Avenues in Newark. As Singh began to pump fuel into a truck, two men, later identified by Singh as Joseph and Victor Cody, beat and robbed him. Victor grabbed Singh from behind and took money from his pocket, while Joseph hit Singh in the face with a metal object, fracturing his left cheek. Singh was able to see both men as they fled.
A surveillance video shows Singh walking toward the truck before the attack at 12:21 p.m. Singh is seen walking around the front of the truck to the driver's side, out of camera range. Less than one minute later, two men can be seen walking around the front of the truck. One of the men wore a hooded coat while the other wore a shirt with a distinctive cross pattern on the back, similar to one recovered after the robbery.
Lorraine Bellamy was at the station and witnessed the robbery, but could not identify anyone. Tashon Brown, an off-duty firefighter, was in the station's convenience store at the time of the robbery. Bellamy told Brown that a man had been robbed and the attackers fled through the park across the street. She described one of the robbers as wearing a dark blue jacket and the other as wearing a white shirt or sweatshirt. Bellamy also told Brown that one of the men had a "low" haircut while the other had longer braids.
Brown told Bellamy he was "going to get them people" and drove out of the station in the direction that Bellamy saw the men fleeing. Brown radioed a report of the robbery and a description of the suspects he had been given to his fire department dispatch. As Brown approached Dayton Street, he spotted two men fitting the description of the robbers in the park who were hastily removing some of their clothing. Brown informed dispatch as he followed the men out of the park and observed them enter a gold Nissan Maxima.
Brown followed the Nissan southwest on Dayton to Foster Street and then north on Frelinghuysen, while simultaneously relaying the license plate number and location of the Nissan to his dispatch. Brown's information was, in turn, relayed to Newark police.
As Brown was following the Nissan, Newark Police Officer Jimmy Rios and his partner Exmil Gonzalez received the report of the robbery and spotted the Nissan. Rios followed the Nissan and initiated a traffic stop. Brown continued to follow the Nissan until it was stopped by police; he then returned to the gas station.
The officers identified Arthur Armstrong as the driver of the Nissan. Joseph Cody was sitting in the front passenger seat, while Victor Cody was in the back seat. Rios told the occupants of the car to keep their hands visible. Armstrong and Joseph complied, but Victor kept his hands near his waistband. After Victor failed to comply with a second command to show his hands, Rios drew his gun and again instructed Victor to show his hands. Victor complied and, after he and the occupants were removed from the vehicle, Victor was patted down and a bundle of money totaling $1,319 was found in his waistband. A black hoodie and a grey shirt with a distinctive cross design were recovered from the vehicle.
We occasionally refer to defendants by their first names for readability.
All three men were arrested and taken in separate cars back to the gas station to see if Singh could identify them. Before Singh saw Victor and Joseph, Rios told Singh that the men he would see may not have been involved in the crime and he was under no pressure to identify anyone. Singh identified both defendants as the ones who robbed and beat him. Specifically, Singh said Victor was the one who held him and Joseph struck him in the eye with a metal object. The show-up was partially recorded on the surveillance camera. Although there is no audio, the video contains a time reference which indicates that the show up began at 12:36 p.m., fifteen minutes after the robbery. Singh testified at trial that, when he identified defendants on April 20, 2012, he was one hundred percent sure that they were the people who robbed him.
Prior to trial, the judge conducted a Wade hearing to determine the admissibility of Singh's out-of-court identification of defendants. Sergeant David Robinson, the first officer to respond to the gas station, testified that he had difficulty communicating with Singh because of a language barrier, so Mandeep Kaur, a woman who also worked at the gas station, translated for him.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Although Singh had sustained injuries to his eye and was bleeding, Robinson found that he was very alert. After defendants were arrested, Robinson radioed to the officers to bring them to the gas station to see if Singh could made an identification.
When the officers arrived, Robinson told them to bring out each defendant, one at a time. When they were presented for identification, both defendants were handcuffed with their hands behind their backs and were each accompanied by two uniformed police officers.
Singh identified Joseph as the officers were still transporting him from the car. Singh noted Joseph's braids and said he was the one who hit him. Singh also quickly pointed at and identified Victor when he was brought out. Robinson did not prepare any documents or make notes about his interactions with Singh.
The judge found that the show-up identification was suggestive, but after hearing only Robinson's testimony, he ruled that he did not have enough evidence to resolve the question of whether the identification was sufficiently reliable to be admitted at trial.
The State then called Singh, who testified through an interpreter that he recognized defendants and was very sure of his identification. Singh stated that he saw the face of the person who grabbed him from behind when that person released him. He described the person who grabbed him from behind as being shorter than him and having a lighter complexion than the person in front of him. Singh said that both individuals were clean-shaven, and the person who grabbed him was wearing a muddy, yellow-colored shirt.
The judge then denied defendants' motions to suppress the out-of-court identification by Singh. He found no evasiveness by either witness and noted that Singh's difficulty with English may have accounted for some of the inconsistencies in his descriptions. The judge determined that the show-up identification was suggestive because defendants were shown to the victim in handcuffs and accompanied by uniformed officers. Also, the victim was in a position to see both defendants together before they were separately displayed.
Despite its suggestiveness, the judge found that the identifications were sufficiently reliable. The judge noted that, during the robbery, Singh had the opportunity to observe the face of both defendants as they ran away, and the subsequent identifications took place within fifteen minutes of the incident. The judge found that the level of confidence Singh expressed in his identifications during the hearing was corroborated by the speed at which the show-up identifications were made.
The judge also conducted a brief pretrial hearing to determine the admissibility of the 911 call, and fire department dispatch and police recordings of the incident. The State offered the recordings as non-testimonial business recordings and present sense impressions. The judge admitted portions of the recordings.
The 911 recording was admitted because the statements were non-testimonial and meant to resolve an emergency, the speaker was referring to events as they were happening, and the "call was plainly a call for help against a bona fide physical threat." The judge also found that portions of the 911 recording were admissible under the present sense impression and the excited utterance exceptions to the hearsay rule.
The segment of the fire department dispatch recording that was admitted was determined to be non-testimonial and fell under the present sense impression hearsay exception.
II.
A.
Joseph argues that the trial judge erred by admitting the show-up identifications at trial because the police failed to make a written record of the identification procedure as required by State v. Delgado, 188 N.J. 48 (2006). He also argues that the identifications should not have been admitted because they were unreliable due to the victim's brief opportunity to view the assailants, the impairment of the victim's perception due to stress and injury, and the inconsistencies in the description of the assailants that the victim later provided. Victor also argues that the show-up identifications were inherently suggestive and unreliable.
A trial court's findings at a hearing on the admissibility of identification evidence are entitled to very considerable weight. State v. Adams, 194 N.J. 186, 203 (2008). The trial court's decision to admit identification testimony should be upheld if there is sufficient credible evidence in the record to support its decision. Ibid.
Out-of-court identifications which result "from impermissibly suggestive procedures" are inadmissible at trial. State v. Smith, 436 N.J. Super. 556, 564 (App. Div. 2014). Although show-up procedures are suggestive, they are a permissible tool with an "indicia of reliability" because they are bolstered by the fact that they occur close in time and place to the event. Id. at 567. However, because a victim may only be presented with one suspect who is in police custody, there is a danger that show-up procedures are too suggestive. Ibid.
The suggestiveness of a show-up identification can be influenced by several factors, including whether the show-up was performed more than two hours after the event, and whether the police warned the witness that the suspect may not be the perpetrator and that the witness should not feel compelled to make an identification. State v. Henderson, 208 N.J. 208, 290 (2011).
For the first time on appeal, Joseph argues that the court erred by admitting testimony concerning Singh's out-of-court identification because the police did not make a written record detailing the procedure as required under Delgado. We consider the argument under the plain error standard, and determine whether the alleged error was "clearly capable of producing an unjust result." Rule 2:10-2 "The possibility of an unjust result must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Williams, 168 N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
In Delgado, supra, two witnesses to a murder were unable to identify the defendant from a photographic array they viewed shortly after the murder, but identified him when shown the same array about seven months later. 188 N.J. at 50. The Court affirmed the defendant's conviction, concluding that the defendant was not harmed by the police officer's failure to make a detailed record of the account because the defendant was able to learn "the specifics of every positive, equivocal, and missed out-of-court identification." Id. at 64.
The Delgado Court exercised its supervisory powers "to require that, as a condition to the admissibility of an out-of-court identification, law enforcement officers make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results." Id. at 63.
Based upon the circumstances presented here, we are not convinced that admission of Singh's out-of-court identification without a prior written record detailing the dialogue between Singh and the police was clearly capable of producing an unjust result. The judge conducted a pretrial testimonial hearing during which the communications with Singh at the show-up procedure were developed in exhaustive detail. Moreover, Singh's identifications were recorded by a surveillance camera. Defendants' failure to object to the lack of a written record concerning the identification procedure supports the conclusion that they did not perceive any prejudice from the police officers' lack of compliance with Delgado's requirements. See State v. Timmendequas, 161 N.J. 515, 576 (1999) (finding failure to object indicates defense counsel did not believe introduction of evidence was prejudicial at the time).
The trial judge held that the two-prong test articulated by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), and adopted by our Supreme Court in State v. Madison, 109 N.J. 223, 232-33 (1988), applied because Singh's identification occurred before the Court adopted the model jury charges on eyewitness identification in Henderson, supra. Neither defendant challenges this ruling.
Under the Manson/Madison framework, the judge must first decide whether the procedure in question was impermissibly suggestive. Madison, supra, 109 N.J. at 232. If so, the judge must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." Ibid. (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). In carrying out this analysis, the judge must focus on the reliability of the identification. Ibid. If the judge finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence. Ibid.
In assessing reliability, the judge must consider five factors: "the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." State v. Herrera, 187 N.J. 493, 507 (2006) (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).
Singh had an opportunity to view his assailants in bright sunlight and at close range, and the certainty of his identifications were apparent on the surveillance video. Singh was also not under the influence of alcohol or drugs, and only fifteen minutes elapsed between the time of the robbery and the identifications. The other evidence at trial bolstering reliability included Brown's observation of both defendants in the park shedding clothing minutes after he was given a description of the robbers by Bellamy; his following of defendants until their apprehension; and the large amount of cash found hidden in Victor Cody's waistband.
However, the most compelling evidence supporting reliability is the surveillance video showing Singh walking around the front of the truck followed less than one minute later by two men who proceeded to the same location. Given the timing, the jury could have reasonably concluded that the two men following Singh were indeed the robbers, and the very distinctive cross design appearing on the back of the shirt worn by the second man in the video was identical to the design on the shirt found in the Nissan minutes after the robbery. We are satisfied that the show-up identifications, while suggestive, were sufficiently reliable to be presented to the jury.
B.
For the first time on appeal, both defendants challenge the identification charge given to the jury and claim it omitted portions of the model jury charge pertaining to out-of-court identifications. Joseph Cody also argues in his pro se brief that the judge erred by providing a defective cross-racial identification charge because the judge did not specifically tell the jury that Singh was not of the same race as defendants.
None of these claims were raised at trial and we consider defendants' arguments under the plain error rule. Adams, supra, 194 N.J. at 206. Under that standard, we will reverse only if we find that the error was clearly capable of producing an unjust result. Id. at 207.
When evaluating a claim of error in a jury charge, we must consider the overall effect of the entire jury charge. State v. Savage, 172 N.J. 374, 387 (2002). A portion of a charge alleged to be erroneous cannot be dealt with in isolation, but should be examined as a whole to determine its overall effect. Ibid.
If reliability of an out-of-court identification is at issue, the trial court is required to provide a "detailed charge directed to the contested facts relevant to the claim." State v. King, 390 N.J. Super. 344, 361 (App. Div.), certif. denied, 190 N.J. 394 (2007). Also, if a "cross-racial identification is not corroborated by other evidence giving it independent reliability," the court should include an instruction that "inform[s] the jury about the possible significance of the cross-racial identification factor" so that the jury may "pay close attention to a possible influence of race." State v. Cromedy, 158 N.J. 112, 132-33 (1999).
Defendants claim the judge failed to instruct the jurors that they should consider what was or was not said to Singh prior to his viewing of defendants in the show-up, including whether Singh was told that the perpetrator may or may not be present and that Singh should not feel compelled to make an identification. Defendants also claim the jurors should have been instructed that feedback from police or other witnesses could affect the independent nature and reliability of the victim's identifications.
The trial judge instructed the jury that the State has the burden of proving the identity of the person who committed the crime and that the jury "must determine, therefore, not only whether the State has proven each and every element of the offense charged beyond a reasonable doubt, but whether the State has proven beyond a reasonable doubt that this defendant is the person who committed it."
The judge instructed the jury that eyewitness identification must be "scrutinized carefully" and "[a]lthough nothing may appear more convincing than a witness's categorical identification of a perpetrator, you must critically analyze such testimony." The judge discussed the following factors: the witness's opportunity to view the perpetrators; stress; duration; weapon focus; distance; lighting; prior description; confidence and accuracy; and time elapsed between the commission of the crime and the identification.
As to the show-up identification, the judge informed the jury that the procedure was suggestive and they should consider what was done and said by the police:
In evaluating the reliability of a witness's identification, you should also consider the circumstances under which any out-of-court identification was made and whether it was result of a suggestive procedure. In that regard, you may consider everything that was done and said by law enforcement to the witness during the identification process. You should consider that, in this case, each witness was — strike that.
In this case, the single witness, Mr. Singh, identified the defendant during a
show-up. That is, a defendant was the only person shown to the witness at that time. Even though such a procedure is suggestive in nature, it is sometimes necessary for the police to conduct a show-up or one-on-one identification procedure. Although the benefits of a fresh memory may balance the risk of undue suggestion, show-ups conducted more than two hours after an event present a heightened risk of misidentification. Also, police officers must instruct the witness that the person they are about to see may or may not be the person who committed the crime and that they should not feel compelled to make an identification. In determining whether the identification was reliable or the result of an unduly suggestive procedure, you should consider how much time elapsed after the witness last saw the perpetrator, whether the appropriate instructions were given to the witness, and all other circumstances surrounding the show-up.
Contrary to Joseph Cody's pro se argument, the judge instructed the jury as to the cross-racial aspects of Singh's identification:
Cross-racial effects: Research has shown that people may have greater difficulty in accurately identifying members of a different race. You should consider whether the fact that a witness and the defendant are not of the same race may have influenced the accuracy of the witness's identification.
We perceive no error, let alone plain error, in the trial judge's jury instructions. R. 2:10-2.
C.
Defendant Victor Cody argues that the portions of the audio recordings of the 911 call, police dispatch communications, and fire dispatch communications admitted at trial were inadmissible hearsay and a violation of the Confrontation Clause.
On the 911 tape, the voice of Mandeep Kaur, Singh's co-worker, can be heard requesting an ambulance at the Getty gas station because there had been a robbery and the victim was bleeding and "got hurt really bad." On the dispatch tape, Firefighter Brown can be heard calling his dispatch and reporting that he was following two men who just beat up a gas station attendant.
At first, the men were walking, but Brown then reported observing them getting into a gold Nissan Maxima. As Brown was following the Nissan northbound on Frelinghuysen Avenue, he reported that a police car was approaching from the opposite direction. He told dispatch to relay to the police to make a U-turn, which they did. Brown continued to follow the Nissan until the police stopped it and took the occupants into custody. Brown confirmed that the police "got the right car."
Newark police dispatch tapes contain the reports of the robbery from the identification and stop of the Nissan to the subsequent apprehension of defendants.
After a pretrial hearing on the State's in limine motion to admit the recordings, the trial judge, relying on Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006), found that the 911 recording was non-testimonial as it was made to resolve a present emergency; events were discussed as they were occurring; and the purpose of the call was to solicit police assistance for an ongoing emergency.
While Mandeep Kaur's 911 call is hearsay under N.J.R.E. 801(c), it meets the criteria for admission pursuant to the present sense impression exception to the hearsay rule. A present sense impression is "[a] statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(1). A present sense impression is admissible regardless of the availability of the declarant to testify at trial. N.J.R.E. 803(c). Here, during her call, Kaur noted her observations of Singh's injuries, including his swollen face and that he was bleeding and "hurt really bad."
The judge also found Brown's recorded observations of defendants, as reported to his dispatch, were admissible as non-testimonial present sense impressions. The judge did not admit the entirety of the recording, finding that once defendants were in custody, and Brown reported "they got 'em," the emergency was over.
Brown reported the events contemporaneously, as he observed them, and had no "opportunity to deliberate or fabricate." N.J.R.E. 803(c)(1). This enhances the reliability of the statements. Also, Brown testified at trial and repeated much, if not all, of what is contained on the dispatch tape.
We review a trial judge's evidentiary rulings for an abuse of discretion. State v. Marrero, 148 N.J. 469, 483 (1997). We find no abuse of discretion on the trial judge's rulings admitting the 911 call and portions of the dispatch tapes.
D.
Defendant Joseph Cody argues that because the officers who responded to the 911 call had no understanding of Punjabi, they did not have personal knowledge of what Singh said and therefore could not testify as to any descriptions that the victim provided.
As Kaur was reporting the assault and robbery to the 911 operator, she spoke with Singh in Punjabi to obtain a description of the assailants and the direction they fled after the robbery. After making the 911 call, Kaur assisted Singh in communicating with Sergeant Robinson and Officer Rios. When Sergeant Robinson arrived at the gas station, he had difficulty communicating with Singh, and Kaur served as a translator. At trial, Officer Rios testified that before the identification, he and his partner were speaking with the victim with the help of the translator. Singh then identified defendants while standing next to Kaur, who was translating for him.
Joseph Cody now claims the testimony of the officers is hearsay, as it is based on the translations of Kaur and does not represent Singh's statements. Neither defendant objected to the officers' testimony at trial as hearsay or because they relied on Kaur's translations.
We note initially that Singh had some fluency in English, which he demonstrated during the recorded statement he gave to Detective Bobby Bullock of the Major Crimes Squad after the robbery. On direct examination, Rios testified that his partner Gonzalez spoke with Singh "with the help of the translator." The State did not solicit any specifics of Singh's description of the perpetrators during the direct examination of Rios or how much assistance Kaur provided to the officers. Instead, the prosecutor played the surveillance video and asked Rios to explain various events depicted, such as the arrival of the police vehicles containing defendants at the gas station, the show-up of each defendant, and Singh's identification of them. Rios noted the portion of the video showing Victor being brought out followed by Singh's identification. Rios can be seen gesturing to the other officers to return Victor to the police vehicle. Rios testified that Singh then pointed at Joseph, identifying him as one of his assailants.
On cross-examination, Victor's attorney questioned Rios as to his conversations with Singh and whether the descriptions Singh gave of the men who robbed him were reflected in a report prepared by Gonzalez. At one point during the playing of the surveillance video, Victor's counsel asked Rios if Sergeant Robinson can be seen speaking with "the lady that was the interpreter." Other than that brief reference, there were no questions by either of defendants' counsel regarding the interpreter.
On redirect, Rios testified that Gonzalez took notes while speaking with Singh, and those notes indicate that Singh described the man who hit him with a blunt object as having long braids while the man with the short haircut held him. There was no objection to this testimony, nor was there any inquiry of Rios as to how much, if at all, Kaur assisted in translating Singh's statements.
Based on this testimony, we find no support for Joseph's claim that when "Officer Rios testified about the victim's identification of both defendants, he . . . could only testify to the translator's words, not the victim's words."
E.
Joseph's two other points of error based on claimed translation irregularities are equally without merit and require no further discussion beyond these brief comments. R. 2:11-3(e)(2).
It is not disputed that Surjit Singh's native language is Punjabi. Singh testified at the Wade hearing with the assistance of a court-approved interpreter, Banu Daginawala. Although Ms. Daginawala did not indicate which language she was translating, the transcript bears the following note from the transcriber: "At [that] point, all proceedings are being translated from English to Hindi and from Hindi to English." Apparently, based solely on this note, defendant Joseph Cody now argues that the trial judge's failure to have a qualified interpreter of Punjabi at the Wade hearing deprived him of a fair trial.
Singh gave no indication at any time during the hearing that he did not understand all of the questions asked of him. Singh also provided coherent answers to those questions both through the interpreter and, on one occasion, in English, before the question was translated. Moreover, neither defendant raised any objection to the interpreter's qualifications or certification.
Defendant's claim that the trial interpreter did not render a word-for-word translation of Singh's testimony is equally devoid of merit. At trial, Official Court Interpreter Harsimran Singh was sworn in to interpret Surjit Singh's testimony. There was no testimony on this point, but the transcript indicates that Harsimran translated from Punjabi to English.
Early in Surjit's direct examination, the judge sua sponte called a sidebar conference and noted that
As the witness and interpreter are both surnamed Singh, we employ their forenames. --------
after the question is asked there's been more than one occasion where the interpreter says something, the witness responds, then the interpreter speaks again, then the witness responds and then the interpreter responds. I don't know if it's clarification, I don't know exactly what it is. But I will instruct the interpreter to ask the question and then the response, and if [the prosecutor] and anyone else needs clarification, we'll do it that way.The judge then informed the jury, "Mr. [Harsimran] Singh is an official court-appointed interpreter." The judge instructed Harsimran as follows: "Mr. Singh, what I would request is that you translate the question asked by the [p]rosecutor and then the response given by Mr. Singh." There was no objection to the judge's instruction.
During cross-examination, Victor's counsel asked Surjit, if the person that grabbed him from behind was his height. Harsimran responded directly to counsel's question: "He is talking about the man in the front." The judge immediately struck the response. Shortly thereafter, counsel remarked, that there was no question pending, prompting the judge to instruct Harsimran, "Sir, please answer the questions. Do not volunteer information." The transcript does not reflect what Harsimran might have said to prompt counsel's comment.
On redirect, when the assistant prosecutor was establishing that Surjit Singh and Harsimran Singh are not related, Harsimran interjected his own answer: "That's just the last name. There are millions of us." The court reminded the interpreter that he was to interpret what the assistant prosecutor said. When the assistant prosecutor repeated the question, Surjit Singh answered through the interpreter.
While there were occasions when the interpreter did not make a word-for-word translation, each instance was promptly addressed by the court, either after objection or sua sponte. Thereafter, the interpreter appeared to follow the judge's instructions. We find no error, let alone plain error, in the way the judge addressed this issue.
F.
Defendant Joseph Cody argues that the trial judge did not properly consider his remorse and willingness to accept responsibility when assessing the mitigating factors of his extended term sentence.
In reviewing a trial judge's sentencing determinations, we employ a deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). We must affirm the sentence unless the sentencing guidelines were violated; the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience." Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). The trial court may not ignore mitigating factors that are called to the court's attention, and when amply based in the record, they must be found. State v. Case, 220 N.J. 49, 64 (2014).
Joseph does not dispute that he was eligible for an extended term sentence. Rather, he claims that the judge abused his discretion in finding aggravating factor three, the risk that the defendant will commit another offense, N.J.S.A. 2C:44- 1(a)(3), because the judge failed to consider defendant's willingness to accept a plea bargain and his expression of remorse.
We first note that a close examination of the sentencing transcript reveals that the only expression of remorse came from Joseph's counsel; when Joseph was asked by the judge if he wished to make a statement, he declined.
Joseph's counsel indicated that, during plea negotiations, Joseph was willing to resolve the matter but Victor was not, and that the State apparently conditioned any plea offer on acceptance by both defendants. However, the judge noted that Joseph was given an opportunity to express responsibility at sentencing and said nothing, although the judge acknowledged that may have been a "tactical" decision because of his appeal.
The judge did not base his decision to apply factor three solely on Joseph's failure to acknowledge his responsibility for the offense. The judge found that factor three was also supported by Joseph's extensive criminal history, which the judge reviewed in detail.
We are satisfied that the judge's findings of the aggravating factors are supported by competent, credible evidence in the record and find no reason to disturb the sentence imposed.
Defendants' remaining arguments lack sufficient merit to warrant further discussion in our opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION