State v. Munoz
| Decision Date | 26 April 2001 |
| Citation | 340 N.J. Super. 204,774 A.2d 515 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Antonio MUNOZ, Defendant-Appellant. State of New Jersey, Plaintiff-Respondent, v. Hector Pantoja, Defendant-Appellant. |
| Court | New Jersey Superior Court |
Wakely Paul, argued the cause for appellant Antonio Munoz.
Peter A. Garcia, Acting Public Defender, for appellant Hector Pantoja (Alan I. Smith, Designated Counsel, of counsel and on the brief).
Pia S. Perez, Assistant Prosecutor, argued the cause for respondent in No. A-2388-98T5 ().
Before Judges BAIME, CARCHMAN and LINTNER. The opinion of the court was delivered by LINTNER, J.A.D
These two appeals, which we decide back to back, arise from Bergen County Indictment No. 95-05-0622 which charged each defendant with burglary of an automobile, N.J.S.A. 2C:18-2 (Count One); theft of a motor vehicle, N.J.S.A. 2C:20-3 (Count Two); receiving a stolen motor vehicle, N.J.S.A. 2C:20-7 (Count Three) armed robbery, N.J.S.A. 2C:15-1 (Count Four and Five); possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Six) and unlawful possession of a knife, N.J.S.A. 2C:39-5d (Count Seven).
From March 3 through March 12, 1997, Munoz and Pantoja were tried before a jury. Counts One and Two were dismissed by the judge in response to a joint defense motion for judgment of acquittal at the end of the State's case. A mistrial was entered after the jury announced that it was unable to reach a unanimous verdict. A second trial was scheduled before another judge. Prior to the commencement of the second trial, the judge granted defendants' joint motion to declare Ricky Rodriguez, a defense witness, unavailable, thereby allowing his prior sworn testimony to be read to the jury, N.J.R.E. 804(a)(4). Although unsuccessful in a similar motion made before the start of the first trial, the new trial judge granted the State's motion prior to the commencement of the second trial to permit one of the victims, Corporal Javier Torres, to wear his United States Marine uniform during his testimony. Following a five day trial, the jury found both defendants guilty on all the remaining counts.
Appropriate fines and penalties were imposed. After mergers, the trial judge sentenced both defendants to an extended term of thirty-years imprisonment with ten-years parole ineligibility on Count Four.
On appeal, Munoz raises the following points:
Pantoja raises the following arguments:
(B) IMPOSITION OF A BASE SENTENCE OF THIRTY (30) YEARS WITH TEN (10) YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.
We reject defendants' arguments and affirm.
On Friday evening, November 25, 1994, Javier Torres and Joachim "Jack" Ferreira were working as attendants at the Bridge Exxon station in Lyndhurst. At approximately 8:15 p.m. a burgundy Mitsubishi GT 3000 with four occupants pulled up in front of the gas station. At the time, Ferreira and Torres were inside the office. Ferreira went outside to assist the driver. According to Ferreira, the driver of the vehicle asked directions to Morristown. After providing directions, Ferreira was asked by one of the passengers if he could use the bathroom. Ferreira pointed out the location of the bathroom and returned to the office. Torres was outside assisting another customer. Two of the passengers came out of the bathroom and entered the office. They attempted to use a vending machine to purchase a bag of chips. However, the machine would not accept their dollar. One of the passengers, later identified as Munoz, approached Ferreira and exchanged bills. According to Ferreira, Munoz was two feet away from him when he approached him to exchange the bill. The new bill was accepted by the machine, and the two passengers left the station after purchasing a bag of chips. Torres then returned to the office.
A short time later, the Mitsubishi returned and pulled up near the bathroom. Ferreira noticed that the driver entered the bathroom, leaving the driver-side door open. The driver then returned to the vehicle and pulled it in front of the garage bays. Munoz and another passenger, later identified as Pantoja, exited the vehicle and entered the office. They each purchased a soda from the vending machine. Ferreira identified Munoz as being the same individual with whom he had exchanged the bill earlier. He described Munoz as appearing to be between 18 and 22 years old, approximately five feet, ten inches in height, with medium to light skin color, "peach fuzz" facial hair and a mustache. He also testified that Munoz had box type hair cut, about one inch high, with waves through it, and shaved sides. He explained that Munoz's facial complexion appeared to have "small pot [sic] holes." Ferreira indicated that he got a pretty good look at the other passenger as well. He described him as dark skinned with a thick mustache.
Ferreira related that, while he was sitting at the desk, he was grabbed by Pantoja who put a knife to his neck. Ferreira responded by saying "stop" and tried to free himself. Simultaneously, Munoz came around to Torres, put his hand on Torres's chest and began pushing him against the counter. Torres, who was in a good position to see Pantoja, described him as approximately 19 years old, five feet, eight inches tall, with black hear, a thick mustache and, what appeared to be, a two-day growth on his face. He was wearing a brown South Pole coat, a black ski hat with "Newark" written on the front, and Timberland blue jeans. Torres testified that both men were Hispanic. Because the dull side of the knife was against Ferreira's neck, Torres, thinking a joke was being perpetrated, made the statement that "you're funny." In response, Pantoja turned the knife around, placed the point against Ferriera's throat and started to press down. According to Ferreira, Pantoja, in response to Torres's comment, first took the knife from his neck, poked him in the ribs, then brought the blade against his neck and in a loud vicious voice demanded "give me the money."
Ferreira immediately pulled approximately $400 out of his pocket and handed it over his shoulder to Pantoja. Torres reached up to his left breast pocket and realized that Munoz was holding a knife to his chest. He told Munoz that the money was in his breast pocket and Munoz reach in and grabbed it. With money in hand, both defendants then ran out of the station and sped off in the Mitsubishi. Ferreira followed in a failed attempt to see the license plate number while Torres called the police.
Lyndhurst Police Officer Scott Hild arrived within minutes. Although Torres did not get a good look at Munoz, he was able to describe Pantoja. Based upon the their collective descriptions, Hild was able to obtain a complete description of both suspects. He also interviewed a motorist, Patricia Nolan, who had been passing by at the time the suspects left the station. Nolan, who was called as a witness for the State, related that, as she was driving by the station she saw an individual run out of the office and get into a car that then sped away with its lights off. The car then pulled up behind her and the driver began flashing the lights. Nolan pulled over to let the vehicle pass and then copied down the license plate number on a piece of paper she took from her purse. She then drove to the station to see if anyone had been hurt.
A subsequent police investigation revealed that the Mitsubishi belonged to a woman named Robin Budnick. Budnick testified that her car was stolen earlier the same evening at around dusk from the parking lot of the Princeton Ski Shoppe, located on Route 3 in Clifton, a distance of approximately two to three miles from the Bridge Exxon.
Hild waited at the scene until Sergeant Paul Crupi arrived. Before leaving the scene, Crupi recovered two soda cans and a dollar bill that had been left behind by the perpetrators. No fingerprints were recovered from the items left at the scene. He later met with both victims who gave him a detailed statement of what had occurred.
Approximately one week after the robbery, Torres went to Frank's Pizzeria in Newark to purchase dinner for his...
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