STATE OF NEW JERSEY VS. MICHELLE VELASQUEZ (14-06-0716, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0370-17T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    MICHELLE VELASQUEZ, a/k/a
    MICHELE VELASQUEZ,
    Defendant-Appellant.
    Submitted March 17, 2020 - Decided July 22, 2020
    Before Judges Fisher and Accurso.
    On appeal from the Superior Court of New Jersey,
    Law Division, Middlesex County, Indictment No. 14-
    06-0716.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Ruth Elizabeth Hunter, Designated
    Counsel, on the brief).
    Christopher L.C. Kuberiet, Acting Middlesex County
    Prosecutor, attorney for respondent (Patrick F.
    Galdieri, II, Special Deputy Attorney General/Acting
    Assistant Prosecutor, of counsel and on the brief).
    PER CURIAM
    Defendant Michelle Velazquez was arrested when she refused to
    relinquish a cell phone her boyfriend Rommel E. Sedin 1 handed her as he was
    being arrested in front of his family's home. Police suspected Sedin and his
    brothers of having committed a string of armed robberies involving cash and
    cell phones, including one in which the victim had identified Sedin as one of
    the robbers. Police were executing a search warrant at the Sedin home when
    he and defendant drove up. As police arrested Sedin pursuant to a warrant, he
    handed a cell phone to defendant, who refused police demands to turn it over.
    The officer in charge repeatedly warned defendant she would be arrested for
    obstruction if she didn't immediately hand over the phone as it was evidence in
    their investigation. When defendant continued to refuse, police arrested her
    and pried the phone from her hand.
    A search incident to her arrest revealed two more cell phones, one
    belonging to the robbery victim who had identified Sedin as one of the men
    who had robbed him of his iPhone and $600 the week before. Data extracted
    from those cell phones revealed that all the calls and texts on the victim's
    1
    Sedin was tried separately from defendant. We affirmed his convictions and
    sentence in a separate opinion. State v. Sedin, No. A-2228-17T2 (App. Div.
    Apr. 20, 2020).
    A-0370-17T2
    2
    phone pre-dating the robbery had been removed. After the robbery, the phone
    was used to dial Sedin's brother and his girlfriend, as well as defendant. The
    victim testified he didn't recognize any of those numbers. The data also
    revealed the victim's phone was used after the robbery to access the internet
    from defendant's home. The data from another of the phones, the one Sedin
    handed to defendant as he was arrested, reflected calls between defendant and
    Sedin just before and just after the robbery.
    After defendant's motions to dismiss the indictment and suppress the cell
    phones, and the data extracted from them, were denied, a jury convicted her of
    fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1), and third-degree
    hindering the apprehension of another person, N.J.S.A. 2C:29-3(a)(3). The
    judge dismissed a charge of receiving stolen property on defendant's motion
    after the State rested. The judge sentenced her to concurrent four-year terms
    of probation with suspended 364-day county jail terms. Defendant appeals,
    raising the following issues for our consideration:
    POINT I
    THE TRIAL COURT ERRED IN DENYING
    DEFENDANT'S MOTION TO DISMISS THE
    INDICTMENT BECAUSE THE STATE FAILED TO
    PRESENT EXCULPATORY EVIDENCE TO THE
    GRAND JURY.
    A-0370-17T2
    3
    POINT II
    THE TRIAL COURT SHOULD HAVE GRANTED
    THE MOTION TO SUPPRESS BECAUSE THE
    WARRANT AFFIDAVIT FOR THE ELECTRONIC
    SEARCH OF CELL PHONES LACKED PROBABLE
    CAUSE.
    POINT III
    EVIDENCE ABOUT THE SEDIN ROBBERY WAS
    NOT INTRINSIC EVIDENCE OF THE CRIMES
    WITH WHICH DEFENDANT WAS CHARGED,
    AND ALSO FAILED TO MEET THE COFIELD
    TEST FOR ADMISSIBILITY. SEE STATE V.
    COFIELD, 
    127 N.J. 328
    , 336 (1992). THEREFORE,
    THE TRIAL COURT IMPROPERLY ADMITTED
    THIS R. 404(B) EVIDENCE.
    POINT IV
    THE TRIAL COURT IMPROPERLY ADMITTED
    THE POLICE OFFICER'S TESTIMONY ABOUT
    THE CELL PHONE EXTRACTION REPORTS
    BECAUSE IT DID NOT SATISFY N.J.R.E. 701.
    We find insufficient merit in defendant's first two points to warrant
    discussion here, see Rule 2:11-3(e)(2), and affirm the rulings on the motions
    substantially for the reasons expressed by Judge Pincus in her thorough and
    thoughtful opinions accompanying the orders. We focus instead on Points III
    and IV.
    A-0370-17T2
    4
    Although Judge Pincus decided the pre-trial motions we affirm here, the
    case was tried by Judge Nieves. His ruling admitting information about the
    armed robbery in which the victim's cell phone was stolen was framed by
    Judge Pincus' pre-trial ruling denying defendant's motion to dismiss the
    indictment but agreeing she should be tried separately from Sedin.
    Specifically, Judge Pincus found sufficient evidence to permit the grand
    jury to infer that defendant believed an official proceeding or investigation was
    pending or about to be instituted against Sedin and acted purposely to conceal
    or remove the phone he handed her to impair its availability in the proceeding
    against him contrary to N.J.S.A. 2C:28-6(1), the tampering charge. The judge
    similarly found sufficient evidence to support the charge of receipt of stolen
    property, N.J.S.A. 2C:20-7, that is, that defendant was with Sedin, who was
    charged with stealing phones during the course of a robbery, she refused to
    turn over the Samsung phone he passed to her when asked by police, and she
    had on her person two other iPhones, one of which was later determined to
    belong to the victim of the robbery. The judge found those circumstances
    "furnishe[d] sufficient proof by inference" that defendant knew the two
    iPhones in her possession were stolen or believed they had probably been
    stolen. The judge likewise found the State had presented sufficient evidence to
    A-0370-17T2
    5
    sustain the hindering charge, N.J.S.A. 2C:29-3(a), in defendant's refusal to turn
    over the Samsung phone after repeated requests, allowing the inference that
    she attempted to conceal all three phones, which might aid in lodging charges
    against Sedin.
    Although denying defendant's motion to dismiss the indictment, Judge
    Pincus acknowledged the "inherent danger as recognized by [Rule] 3:15-2(6)
    in having the crimes" of defendant and Sedin tried together. She noted Sedin
    was charged with first-degree robbery, second-degree conspiracy, second-
    degree possession of a handgun, second-degree possession of a handgun for
    unlawful purposes, and aggravated assault versus defendant's "much less
    serious offenses." Given that disparity, the judge found it would be difficult
    for a jury to separately consider defendant's culpability because "the jury
    would hear all of the evidence regarding a series of violent robberies with a
    gun."
    Judge Pincus concluded her ruling on the severance motion with the
    following thoughts:
    This court recognizes that some of the testimony
    of the robberies will have to be presented during
    Defendant Velasquez's trial in order to provide context
    of the circumstances surrounding Defendant Sedin.
    However, there would not be a need for the prosecutor
    to present all of the details of the armed robberies at a
    A-0370-17T2
    6
    trial for Defendant Velasquez, but rather the
    presentation would be limited to the jury
    understanding the significance behind the officer's
    request for the cell phone from Defendant Velasquez.
    Even if the court provided a limiting instruction [in a
    joint trial], the context and nature of the evidence is
    still such that creates a great risk that a jury will not,
    or cannot, follow such an instruction. Thus, this court
    finds that a limiting instruction would not be sufficient
    to ensure that the jury will not use the evidence of the
    armed robberies improperly against Defendant
    Velasquez and the charges of both Defendant Sedin
    and Defendant Velasquez must be severed.
    Thus, the central problem for Judge Nieves at trial was determining how
    much of the testimony of the robberies needed to be admitted in order to
    permit the jury to understand "the circumstances surrounding . . . Sedin" and
    "the significance behind the officer's request for the cell phone from
    defendant," and what details would be unfairly prejudicial to her.
    Complicating that calculus was information extracted from the cell phones
    following the court's ruling. Specifically, the State discovered applications
    had been downloaded to a phone used by defendant that would allow the user
    to monitor police scanners. In addition, the information extracted from the cell
    phones revealed a text from defendant's phone to Sedin, telling him the address
    from which the 911 call reporting the robbery was placed only one minute
    after that call to police.
    A-0370-17T2
    7
    Judge Nieves prohibited the State from referencing those texts. He
    noted defendant was not charged as Sedin's accomplice or with conspiracy to
    commit robbery, and as he found "there's no doubt that that text message to
    [Sedin], because of [defendant] listening to the scanner while he's committing
    the crime" would implicate her in the robbery, it was "too prejudicial" to be
    admitted at her trial for tampering, hindering and receipt of stolen property.
    Instead, the judge limited the State to the victim's account of the robbery,
    including his feeling "cold metal" against his head, which "felt like a gun."
    And while allowing police to refer to cell phones and "a weapon" recovered in
    the search of the Sedin home, the judge refused to allow police to testify the
    weapon recovered was a gun matching the victim's description of the gun put
    to his head.
    Having reviewed the trial transcripts, including the several discussions
    between counsel and the court about the admission of evidence related to the
    robbery, we reject defendant's argument that the limited evidence of the Sedin
    robbery was not intrinsic evidence of the crimes with which defendant was
    charged and was, instead, improperly admitted N.J.R.E. 404(b) evidence.
    Simply stated, the evidence regarding the Sedin robbery implicated Sedin, not
    defendant, making N.J.R.E. 404 inapplicable. See State v. Figueroa, 358 N.J.
    A-0370-17T2
    8
    Super. 317, 326 (App. Div. 2003) (declining to find N.J.R.E. 404(b) applied to
    prior bad acts of others not the defendant); Biunno, Weissbard & Zegas,
    Current N.J. Rules of Evidence, cmt. 7 on N.J.R.E. 404 (2020) ("The rule
    applies only to other acts of the defendant; thus, evidence that includes
    references to bad conduct by the defendant's accomplices does not implicate
    this rule").
    Defendant was indicted for tampering with evidence by concealing an
    iPhone that Sedin stole from the victim in an armed robbery to make it
    unavailable to police, knowing an official proceeding or investigation was
    pending or imminent, and hindering Sedin's prosecution for first-degree armed
    robbery by concealing evidence of the crime, namely the iPhone. As both
    judges to preside over the matter recognized, essential facts of that robbery,
    namely defendant's knowledge that one or more of the phones in her
    possession were likely stolen and her efforts to prevent police from obtaining
    the phone in order to shield Sedin from a first-degree robbery charge were all
    required elements of the State's case.
    Judge Nieves carefully limited the testimony about the robbery and
    several times delivered a strong limiting instruction explaining to the jury that
    defendant was not charged with robbery, that "she had nothing to do with" it,
    A-0370-17T2
    9
    and that the jury could not use defendant's association with Sedin and his bad
    acts against her. The judge explained the testimony was admitted only to "put
    this case into context" and allow the jury to consider whether the State had met
    its burden to prove "all the elements of hindering an investigation for a crime
    of the first degree and tampering with the evidence." As the evidence was
    highly probative of defendant's intent to tamper with evidence and hinder
    Sedin's prosecution for armed robbery, certainly material, and the judge
    limited the testimony to reduce the risk of undue prejudice and instructed the
    jury about the limited purposes for which they could consider it, we cannot
    find any error in Judge Nieves admitting it under the test of N.J.R.E. 403. See
    State v. Scott, 
    229 N.J. 469
    , 479 (2017).
    As to defendant's Point IV, that the trial judge improperly admitted the
    police officer's testimony about the cell phone extraction reports under
    N.J.R.E. 701, we are unconvinced. The testimony defendant complains of —
    about the deletion of the victim's call logs and other specific calls and texts
    after it was stolen from him — was not objected to by defendant. See State v.
    Santamaria, 
    236 N.J. 390
    , 404 (2019). While defendant's counsel did object to
    the detective testifying about apps on defendant's phone to monitor police
    A-0370-17T2
    10
    activity, that testimony was already in the record without objection through the
    testimony of the arresting officer.
    The detective who testified about what the cell phone extraction records
    revealed did no more than describe, as a fact witness, that certain calls and
    texts were deleted from the phones in defendant's possession and list the apps
    loaded on the phone. See State v. Miller, 
    449 N.J. Super. 460
    , 471 (App. Div.
    2017), rev'd on other grounds, 
    237 N.J. 15
    (2019) (permitting police officer to
    testify as a fact witness, reporting what he found through his forensic
    investigation of the defendant's laptop). The officer offered no testimony that
    calls or texts were deleted to avoid detection of a crime of the sort we found
    objectionable in State v. Smith, 
    436 N.J. Super. 556
    , 574 (App. Div. 2014).
    Affirmed.
    A-0370-17T2
    11
    

Document Info

Docket Number: A-0370-17T2

Filed Date: 7/22/2020

Precedential Status: Non-Precedential

Modified Date: 7/22/2020