State v. DeRosa
| Decision Date | 03 July 2019 |
| Docket Number | DOCKET NO. A-3169-16T4 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN DEROSA, a/k/a JOHNNY BO DEROSA, JOHNNIE B. DEROSA, JOHN N. DEROSA, JOHNNY DEROSA, SELVIO URIBE, JOHNNYBOY, JOHNIE DEROSA, and NICHOLAS DEROSAJOHN, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Koblitz, Ostrer and Currier.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-06-1170.
John Walter Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; John Walter Douard, of counsel and on the briefs).
Charles C. Cho, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Charles C. Cho, on the brief).
Appellant filed a pro se supplemental brief.
Defendant John DeRosa appeals from his conviction of murder; felony murder; armed robbery; unlawful possession of a weapon; and possession of a weapon for an unlawful purpose. Defendant argues the court improperly admitted his girlfriend's statement, which she made while addicted to heroin and could not recall at trial, hampering defendant's ability to cross-examine her. Defendant also argues the court should have dismissed the indictment because the State failed to preserve a segment of surveillance footage. In a pro se brief, defendant challenges several evidentiary rulings. Finally, defendant contends his life sentence was excessive. Having reviewed defendant's arguments in light of the record and applicable principles of law, we affirm.
We discern the following facts from the record. On the morning of August 18, 2009, defendant and his two co-defendants, Edmir Sokoli and Elvis Feratovic, robbed a jewelry store in Kearny that belonged to Honorio and Sylvia Egoavil, husband and wife. In preparing for the robbery, defendants planned tobind the owners at gunpoint, steal the jewelry, and exit through the back of the store, where Feratovic would wait in his car. Sokoli testified that the morning of the robbery, Feratovic drove him and defendant around the block "once or twice . . . [m]aybe three times" until they saw Honorio step out for some coffee. Sokoli and defendant entered the store, disguised in wigs and fake beards and mustaches. They were surprised to find Sylvia was not alone. Her son Xavier had come to help his parents and stood with his mother in the back of the store. Defendant warned them to stay put as Sokoli stuffed jewelry into a bag. Xavier moved towards defendant; defendant shot him four times, striking him in the head, torso, and leg. Xavier died on the floor.
Questioned a week later, defendant's then-girlfriend, Larissa Fuzia, provided an alibi for defendant. Shortly afterwards, Fuzia entered a drug-rehabilitation program to treat her heroin addiction. Upon further questioning during and after her rehabilitation, Fuzia admitted defendant had come home on the day of the crime and told her he shot someone during a robbery that "went bad." He also told her to dispose of a bag in their apartment; the bag contained the remnants of disguise props - wigs, beards, mustaches, and glue. Fuzia testified that, three days before the robbery-homicide, defendant and she hadpurchased the disguises from a New York City magic and costume store, which she named.
A June 15, 2010 indictment principally charged defendant with first-degree murder, felony murder, and robbery while armed with a deadly weapon; and second-degree unlawful possession of a weapon and possession of a weapon for an unlawful purpose. The court denied defendant's motion to dismiss the indictment on grounds of prosecutorial misconduct before the grand jury.
The State produced surveillance footage from the morning of the robbery, which it copied from the hard drive of a neighboring store. Though the hard drive reportedly contained two months of surveillance, the State disclosed only twenty minutes of it, from 8:45 to 9:05 a.m. on the day of the crimes. The State stipulated that the rest of the video was lost or misplaced. The State maintains that the preserved segment showed Feratovic's car circle the block three times, the last time at 8:58.1 It then shows two unidentifiable individuals enter the store before the robbery, which Sylvia said occurred at about 9:00 a.m.
Before trial, the court denied defendant's motion to compel the production of the missing video, concluding that the court could not compel production of something the State did not possess. However, the court held that defendantwould be entitled to an adverse inference if he established that the State possessed the video and lost it.
New counsel for defendant moved to dismiss the indictment before a second judge, who would ultimately preside over the trial, arguing the missing footage would have helped exculpate defendant by contradicting Sokoli's testimony. The trial court denied the motion. Relying on State v. Serret, 198 N.J. Super. 21, 26 (App. Div. 1984), and State v. Casele, 198 N.J. Super 462, 469-70 (App. Div. 1985), the court held that defendant had to show bad faith by the State in failing to preserve the potentially exculpatory footage. However, the judge affirmed that he would issue an adverse-inference charge. Defendant also moved pretrial to suppress Fuzia's statements, claiming they lacked reliability, which the trial court denied.
At trial, consistent with the court's ruling, the State introduced the video and the court instructed the jury that it could infer that the missing footage would have adversely affected the State's case. Xavier's mother gave a physical description of the shooter, but did not make an in-court identification. Feratovic testified that defendant planned the robbery and was armed. Sokoli testified he saw defendant shoot Xavier. At least one bystander also recalled seeing a manrun out of the jewelry store that morning, holding a handgun, who matched defendant's description.
Fuzia testified, but she could not recall any detail of her statements to the police or when she gave them, despite counsel's attempts to refresh her memory. After an N.J.R.E. 104 hearing, the trial court held her testimony admissible as "past recollection recorded" under N.J.R.E. 803(c)(5). Over defendant's objection, the court instructed the jury to determine if defendant in fact made the statements that Fuzia attributed to him, and to consider "the circumstances and facts as to how the statement was made, as well as all other evidence in this case relating to this issue."
To corroborate Fuzia's account of the prop purchase, the State introduced, through a former store employee, a photocopied sales receipt that listed "hair goods" and makeup for $289.61 - Fuzia had said the cost was between $250 and $290 - but did not identify the purchaser or the specific items bought. The receipt also indicated that the purchase was made on Sunday, August 16, although Fuzia told the police she and defendant bought the items on Saturday, August 15, 2009. The employee verified that he executed the sale. Though the receipt did not specify the hair goods and makeup sold, the employee testified that the number of items and their prices fit with a purchase of two wigs, twofake beards, two mustaches, adhesive gum and adhesive gum remover. On cross-examination, the employee conceded that he could not be certain about what "hair goods" or "makeup" included, and that the store owner searched for a receipt that could have matched items the detectives had specified.
Also at trial, the medical examiner, Dr. Lilavois, testified about the injuries to the victim's body - which included gunshots to his head, chest, and leg - based on contemporaneous photographs of the body and a report the previous medical examiner, Dr. Blumenfeld, prepared. Dr. Lilavois stated that his testimony reflected his own independent conclusions based on those materials.
Before trial, Dr. Lilavois submitted a report stating simply that, based on his own independent review of the photos and report, he concurred with Dr. Blumenfeld's conclusions. Defendant argued, citing State v. Bass, 224 N.J. 285 (2016), that the Confrontation Clause barred this statement or the reading of Dr. Blumenfeld's report at trial. However, the prosecutor assured the court he would introduce neither written statement and would instead rely solely on Dr. Lilavois's oral testimony. The trial judge then denied defendant's application. Defense counsel did not object at any point during the State's direct examination of Dr. Lilavois.
Defendant did not testify. The defense called several witnesses to raise doubts about the appearance of the two robbers seen fleeing the jewelry store. The defendant also called a witness to establish that, at the behest of the prosecutor's office, Sokoli and Feratovic were incarcerated in the same cell for an extended period of time, suggesting that they had ample time to coordinate their testimony. The defense theory was that Sokoli, Feratovic and Fuzia lied out of self-interest. In summation, the defense highlighted inconsistencies in their testimony.
The jury convicted defendant on all counts. At sentencing, the trial judge noted that defendant had prior convictions of murder and other crimes. Concluding that defendant had "an absolute disregard for the law," the judge sentenced him to a life term on the murder count and to concurrent terms of twenty years for armed robbery and ten years for unlawful possession of a weapon. Pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2(d)(1), defendant's parole ineligibility period was sixty-three years and nine months. Defendant was fifty-two years...
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