State v. Almonte
| Decision Date | 27 July 2021 |
| Docket Number | A-0536-18 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUIS ALMONTE, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2021
On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Indictment No. 16-070112.
Joseph E. Krakora, Public Defender, attorney for appellant (David J Reich, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Daniel Finkelstein, Deputy Attorney General, of counsel and on the brief).
Before Judges Gooden Brown and DeAlmeida.
Following a jury trial, defendant and co-defendant Jorge Oviedo-Difo, who was tried in absentia, were convicted of second-degree possession of a handgun without a permit N.J.S.A. 2C:39-5(b) (count one); and two counts of fourth-degree possession of prohibited weapons and devices, N.J.S.A. 2C:39-3(f)(1) and 2C:39-3(j) (). Defendant was sentenced to an aggregate term of five years' imprisonment with a forty-two-month period of parole ineligibility.
The convictions stemmed from a multi-state sting operation conducted by the Drug Enforcement Administration (DEA) to identify members of a Philadelphia crew that perpetrated home invasions to rob drug dealers. The physical items forming the evidential bases for the charges were recovered during a consent search of the co-defendant's vehicle conducted at a rest stop on the New Jersey Turnpike when the co-defendant and defendant were en route to a fabricated home invasion in New York that had been arranged by a confidential informant (CI) working for the DEA.
Defendant now appeals from his convictions raising the following points for our consideration:
After considering the arguments presented in light of the record and applicable law, we affirm.
Following significant motion practice, trial commenced on June 14, 2018. We glean these facts from the record of the four-day trial, during which the State produced three witnesses, DEA Agent Steven Chapman, the CI, and New Jersey State Police Detective Joseph Czech. Agent Chapman testified that during a sting operation conducted in late 2015 to early 2016, the DEA obtained a phone number and a code word to contact a suspected crew operating out of Philadelphia that robbed drug dealers. Because the identity of the crew members was unknown, the DEA gave the phone number to a paid CI to identify the members and infiltrate the crew.
On December 29, 2015, at the behest of the DEA, the CI contacted an individual identified as co-defendant Oviedo-Difo at the phone number acquired during the investigation. Once the CI confirmed that co-defendant Oviedo-Difo was interested in participating in a robbery, the CI arranged a meeting in New York to discuss a fabricated robbery of a stash house in the Bronx. The phone conversation between the CI and co-defendant Oviedo-Difo to arrange the meeting was recorded. According to Chapman, the DEA planned to arrest the crew members when they arrived to rob the stash house.
The CI testified that co-defendant Oviedo-Difo and an individual later identified as defendant attended the prearranged meeting in Manhattan. During the meeting, the CI informed defendants he had a contact inside an apartment containing money and drugs, and that the contact would give them access to the apartment for the robbery. The CI told defendants he would call them the day before the planned robbery and asked them how they would commit the robbery. According to the CI, co-defendant Oviedo-Difo responded that they would bring "tape and a ski mask." When the CI specifically asked if they were "coming with guns," both defendants responded "[o]f course" as they anticipated that the apartment occupant would be armed. The CI suggested that defendants "wear a hat and a hoodie" to conceal their identities.
The New York meeting took place in an SUV parked at a prearranged location, lasted approximately twenty minutes, and was secretly recorded by the CI, who was seated in the back seat next to defendant and had an unobstructed view of defendant. Co-defendant Oviedo-Difo sat in the driver's seat and an unidentified male sat in the front passenger seat. The audio recording of the meeting was played for the jury during the trial and a transcript was provided as an aid.
A few weeks after the meeting, the CI called co-defendant Oviedo-Difo and told him that everything was set for the following day. On the day of the planned robbery, January 20, 2016, co-defendant Oviedo-Difo told the CI in a phone conversation that they were "getting ready to leave." Throughout the day, Oviedo-Difo and the CI continued to communicate via telephone and the conversations were recorded.
Defendants traveled from Philadelphia in co-defendant Oviedo-Difo's vehicle to meet the CI for the robbery in New York. However, while en route, the car began to overheat, and, at about 4:00 p.m., Oviedo-Difo told the CI that he had to pull off at a rest stop on the New Jersey Turnpike. At the request of the DEA, members of the New Jersey State Police responded to the Grover Cleveland Rest Area and arrested defendants when they observed them approach the disabled vehicle described to the officers by the DEA. Although the vehicle was not surveilled when it left Philadelphia, the DEA was aware of its location through the telephonic communications between the CI and co-defendant Oviedo-Difo.
After obtaining consent from co-defendant Oviedo-Difo, the registered owner of the vehicle, Detective Czech testified that he and other unit members searched the vehicle, beginning at 6:35 p.m. The search uncovered a semiautomatic Smith and Wesson handgun[2] loaded with a large capacity magazine and hollow-point bullets hidden inside a sock secreted behind the radio in the "dashboard center console compartment" of the vehicle. Neither defendant had a permit for the gun. Suspected robbery tools consisting of two black ski masks, black gloves, duct tape, zip ties, and a black hooded sweatshirt were found on the backseat. In the rear portion of the vehicle, officers recovered a bag of suspected burglary tools consisting of screwdrivers, pliers, socket wrenches, and the like.
After being administered his Miranda[3] warnings, co-defendant Oviedo-Difo gave a statement to police. Detective Czech testified that, in the statement, Oviedo-Difo explained that he was giving defendant a ride from Philadelphia to New York to meet someone in the music industry when "[his] truck broke down." Oviedo-Difo admitted that other than the hooded sweatshirt, [4] the gloves, and the ski masks, [5] the items found in the back seat and the rear of the vehicle belonged to him. When questioned by police, he provided innocuous and inconsistent explanations for the presence of the items in the vehicle. Oviedo-Difo also stated he installed an after-market radio in the compartment where the gun was found but denied any knowledge or ownership of the gun.
Defendant testified on his own behalf. He emphatically denied being present at the New York meeting, denied that it was his voice on the audio recording of the meeting, and denied any knowledge of a planned robbery. He stated that co-defendant Oviedo-Difo was "an acquaintance" he met "[a]t the barbershop" in Philadelphia. Defendant explained that the only reason he was in Oviedo-Difo's vehicle when they were arrested was because he needed a ride to New York for a business meeting with a client in the music industry and defendant's car was unreliable. Defendant stated he had "an entertainment company" that "manage[d] artists and musical events." Defendant claimed he did not know there was a gun in the car and did not notice the items in the rear of the car when he placed his "jacket"[6] there. Defendant expressly denied ownership of the ski masks. After he was convicted and sentenced, this appeal followed.
In Point I, defendant argues that "[i]n view of the absence of an express finding of clear and convincing evidence that [defendant's] voice was on the recording or that he ever met or spoke with the informant," as required under Rule 404(b), [7] it was reversible error for the trial judge "to submit the audio recording and the transcript of that recording to the jury" when defendant "vehement[ly] dispute[d]" the account. Defendant asserts further that the judge erred in failing "to instruct the jury concerning the limited purposes for which the other bad acts at issue could be considered" and erred in failing "to sanitize the other bad acts evidence" to redact discussions about the details of the planned robbery to "minimize its harmful impact." Defendant also contends he was deprived of "a fair trial" by repeated "testimony linking [him] to the alleged planned robbery"...
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