SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5324-95T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE PADUANI,
Defendant-Appellant.
Submitted December 16, 1997 - Decided
January 15, 1998
Before Judges Long, Stern and Kleiner.
On appeal from the Superior Court of
New Jersey, Law Division, Passaic County.
Ivelisse Torres, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, of counsel and on the brief).
Ronald S. Fava, Passaic County Prosecutor,
attorney for respondent (Michelle Katich,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
On February 2, 1995, defendant, Jose Paduani, and his
brother, Richard Paduani, were charged with: aggravated assault
against Josue Rodriguez, contrary to N.J.S.A. 2C:12-1b(2), a
third-degree crime (count one); possession of a weapon for an
unlawful purpose, contrary to N.J.S.A. 2C:39-4a, a second-degree
crime (count two); aggravated assault against Victor Diaz,
contrary to N.J.S.A. 2C:12-1b(2), a third-degree crime (count
three); possession of a weapon for an unlawful purpose, contrary
to N.J.S.A. 2C:39-4a, a second-degree crime (count four); and
unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b, a
third-degree crime (count five).
In a joint trial, each defendant was found not guilty on
both counts one and three charging aggravated assault; however,
each defendant was found guilty on both counts one and three of
the lesser-included offense of pointing a firearm, in violation
of N.J.S.A. 2C:12-1b(4), a fourth-degree crime. On counts two
and four, each defendant was found not guilty of possession of a
weapon for an unlawful purpose to use it unlawfully against the
property of the alleged victims but found guilty of possession of
a weapon with a purpose to use it unlawfully against the person
of each victim. Each defendant was also acquitted on count five
charging unlawful possession of a weapon.See footnote 1
At sentencing, the trial judge merged defendant's pointing a
firearm convictions into the convictions for possession of a
weapon for an unlawful purpose and then sentenced defendant to a
custodial term of ten years with a five-year period of parole
ineligibility. The sentences on counts two and four were to be
served concurrently with each other. Appropriate statutory
penalties payable to the Violent Crimes Compensation Board were
also imposed.
On appeal, defendant raises seven points of error:
POINT I
THE TRIAL COURT COMMITTED PLAIN ERROR AND
COMPROMISED DEFENDANT'S RIGHT TO FULL
APPELLATE REVIEW BY PRESIDING OVER A TRIAL
WHICH DID NOT TRANSCRIBE SIDEBAR CONFERENCES
(NOT RAISED BELOW)
OFF THE RECORD SIDEBAR CONFERENCES WHICH ARE NOT THE SUBJECT OF ANY SUBSEQUENT STATEMENT'S [sic] OR CLARIFICATIONS BY THE COURT.
OFF THE RECORD SIDEBAR DISCUSSIONS WHICH WERE FOLLOWED BY ATTEMPTED CLARIFICATIONS AND SUPPLEMENTAL STATEMENTS.
SINCE THE OMITTED PORTIONS OF THE RECORD, WHETHER SUPPLEMENTED OR NOT, RELATE TO ISSUES RAISED ON APPEAL, THE COURT'S PROCEDURE DURING TRIAL NOT TO RECORD SIDEBAR CONFERENCES REQUIRES REVERSAL OF DEFENDANT'S CONVICTION AS PLAIN ERROR. (NOT RAISED BELOW)
POINT II
ADMISSION OF EVIDENCE OF DEFENDANT'S ALIAS
WAS IMPROPER AND SO PREJUDICIALLY UNFAIR AS
TO HAVE DEPRIVED DEFENDANT OF A FAIR TRIAL.
EVIDENCE OF DEFENDANT'S ALIAS WAS NOT MATERIAL TO PROOF OF ANY OF THE CHARGED CRIMES.
EVEN IF MATERIAL AND RELEVANT, THE PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY PREJUDICE AND DEFENDANT'S ALIAS SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403.
POINT III
ADMISSION OF THE NOVEMBER 16, 1994 STATEMENT
OF VICTOR DIAZ AND JOSE RODRIGUEZ AS PRIOR
INCONSISTENT STATEMENTS WAS REVERSIBLE ERROR.
THE COURT ERRED IN ADMITTING VICTOR DIAZ'S STATEMENT AS A PRIOR INCONSISTENT STATEMENT BECAUSE DIAZ'S TRIAL TESTIMONY WAS "INCONSISTENT" WITH THE STATEMENT.
THE COURT ERRED IN ADMITTING THE STATEMENT OF JOSUE RODRIGUEZ AS A PRIOR INCONSISTENT STATEMENT BECAUSE THE STATE FAILED TO ESTABLISH THE "RELIABILITY" OF THE STATEMENT BY A PREPONDERANCE OF THE EVIDENCE.
POINT IV
DEFENDANT'S ABILITY TO ENGENDER A REASONABLE
DOUBT WAS UNDULY RESTRICTED BY THE TRIAL
COURT. (NOT RAISED BELOW)
POINT V
THE COURT ERRED IN DENYING THE MOTION FOR
JUDGMENT OF ACQUITTAL AT THE END OF THE
STATE'S CASE.
POINT VI
THE PROSECUTOR'S SUMMATION SUBSTANTIALLY
PREJUDICED DEFENDANT'S RIGHT TO HAVE THE JURY
FAIRLY EVALUATE THE EVIDENCE. (RAISED IN
PART BELOW)
THE PROSECUTOR IMPROPERLY VOUCHED FOR THE CREDIBILITY OF THE POLICE. (RAISED BELOW)
THE PROSECUTOR MISLED THE JURY IN URGING AN UNSUPPORTABLE CONSIDERATION OF THE PRIOR INCONSISTENT STATEMENTS ADMITTED DURING TRIAL. (NOT RAISED BELOW)
THE PROSECUTOR IMPROPERLY INVITED THE JURY TO DECIDE DEFENDANT'S GUILT ON THE BASIS OF SOCIETAL DUTY. (NOT RAISED BELOW)
POINT VII
THE IMPOSITION OF A TEN (10) YEAR CUSTODIAL SENTENCE WITH FIVE (5) YEARS OF PAROLE
INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND AN
ABUSE OF DISCRETION BY THE SENTENCING COURT.
THE COURT FAILED TO ARTICULATE ANY REASON FOR IMPOSING A SENTENCE IN EXCESS OF THE PRESUMPTIVE SEVEN (7) YEAR TERM FOR CRIMES OF THE SECOND DEGREE.
THE COURT FAILED TO ARTICULATE ANY REASON FOR IMPOSING A FIVE (5) YEAR PERIOD OF PAROLE INELIGIBILITY.
We have carefully reviewed the record in light of these contentions and conclude that our intervention is unwarranted. The arguments raised in Points II, III, IV, V, VI, and VII are without merit. R. 2:11-3(e)(2). As to those points, we add additional comment. The balance of this opinion focuses on Point I of defendant's appeal.
On November 15, 1994, at approximately midnight, Victor Diaz and Josue Rodriguez were installing a car radio into a Volkswagen at 18th Street in Paterson when a yellow Cadillac stopped in the street and two men with black handguns in their hands exited the vehicle. One man fired approximately four shots toward the Volkswagen. The other man held his gun in the air and shouted, "That's not them." The men reentered the Cadillac and were driven away by a third individual.
On November 16, 1994, Diaz gave a statement at the detective bureau. He stated, "I saw two guys jump out of the yellow car. The driver stayed in the car. As we were looking I saw the guy I
know as Marijuana with a gun and it was pointed at us. . . ."
Diaz identified a picture of defendant Jose Paduani as
"Marijuana." When questioned as to the identity of the other
gunman, he stated, "I know him as Trouble. He is Marijuana's
brother."
On that same date, Rodriguez gave a statement in which he
identified the gunmen as "Marijuana" and "Trouble," the names by
which he knew defendant and co-defendant, Richard Paduani.
Rodriguez also identified photographs of both assailants.
Subsequent to November 16, 1994, each victim recanted his
prior statement and attempted to withdraw all criminal complaints
lodged against each defendant. At trial, each victim testified
as to the underlying incident, but each victim persisted in
recanting the identification of each defendant as contained in
their statements at the detective bureau on the morning of
December 16, 1994. Additionally, Rodriguez disavowed giving any
statement to detectives. The only other witnesses for the State
were detectives who had interviewed either Diaz or Rodriguez.
The trial judge conducted two Rule 104 evidentiary hearings and
admitted the statements of both Rodriguez and Diaz as prior
inconsistent statements.
It is abundantly clear that the primary issue at trial was
the credibility of Rodriguez and Diaz, comparing their statements
allegedly given on November 16, 1994, their recantations at trial
as to the identification of each defendant, and the testimony of
detectives who took the statements allegedly given by each victim
on November 16th. The jury obviously rejected each victim's
recantation as to their identification of the perpetrators as
Richard and Jose Paduani.
Defendant contends that by conducting twenty-nine sidebar conferences off the record, the trial judge committed plain error requiring reversal of defendant's conviction and a new trial. In analyzing the efficacy of this contention, we are guided by our decision in State v. Green, 129 N.J. Super. 157 (App. Div. 1974). In Green, we considered, among other issues, whether the denial of a motion for sequestration was error. We noted the absence of a record as to the motion and under those circumstances were constrained to reverse. In reaching that conclusion we noted:
This points up a potential hazard in conducting side bar discussions off the record. The transcript of this trial contains a record of 18 such conferences of unknown length. While we recognize the absolute necessity for side bar conferences if trials are to proceed without undue delay and to avoid the needless shuttling of juries between the courtroom and the jury room, great care must be exercised by the trial judge to assure preservation of a verbatim recording of the proceedings required by R. 1:2-2 and R. 2:5-3(a). The complete transcript is of crucial importance for a meaningful review to both the appellate court and to new counsel on appeal. All side bar conferences which pertain in any way to the trial or the conduct thereof must be "on the record" and a verbatim recording made.
[Id. at 166 (citations omitted).]
Despite our admonition in Green, we did not conclude that
every failure to comply with the cited rules constitutes a per se
basis for reversal. See R. 2:10-2 ("Any error or omission shall
be disregarded by the appellate court unless it is of such a
nature as to have been clearly capable of producing an unjust
result, but the appellate court may, in the interests of justice,
notice plain error not brought to the attention of the trial or
appellate court.").
By analogy, our Supreme Court concluded in State v. Perry,
124 N.J. 128 (1991), that a "gap" in a trial record neither
automatically results in a defective trial record nor
automatically prejudices a defendant's chance for appellate
review. The Court noted: "The three 'gaps,' when read in the
context of the entire transcript and of those discussions
immediately preceding each gap, all involved inconsequential
administrative matters or were related simply to waiting for the
jury to re-enter the courtroom and settle into the jury box."
Id. at 170.
The Supreme Court of Hawaii recently decided in State v.
Bates,
933 P.2d 48 (Hawai'i 1997),See footnote 2 with an exhaustive review of
federal and state precedent, including that of Hawaii, id. at 55,
that: "[W]here the transcripts of a defendant's trial are
incomplete because they omit portions of the trial proceedings,
such omissions do not mandate reversal unless the defendant can
demonstrate specific prejudice." Id. at 54.
Bates also added the following caveat: "[A] defendant has a
duty to reconstruct, modify, or supplement the missing portions
of the record, and a failure to make a reasonable attempt to do
so precludes him or her from alleging reversible error." Ibid.
See also R. 1:2-2, Pressler, Current N.J. Court Rules, comment 3
(Reconstruction of record); see also, R. 2:5-5(a) (Motion to
Settle the Record).
We note that in United States v. Sierra,
981 F.2d 123 (3rd
Cir. 1992), cert. denied,
508 U.S. 967,
113 S. Ct. 2949,
124 L.
Ed.2d 696 (1993), the Third Circuit concluded:
Our view that the failure to comply with
the Court Reporter Act does not warrant
reversal without a specific showing of
prejudice is generally shared by other
circuits. . . . [I]nasmuch as many of the
trial rulings made at sidebar are reflected
in the recorded transcript of the trial
proceedings, the mere absence of the sidebar
transcript does not signify prejudice.
[Id. at 125, 127.]
We recognize that where a defendant contends that error was
made in an unrecorded sidebar conference, prejudice may result
from our inability to review the alleged error. Calhoun v.
United States,
384 F.2d 180, 184 (5th Cir. 1967). However, that
is not the case here.
It is undisputed that the record on appeal inexcusably
contains twenty-nine unrecorded sidebar conferences. Six of
those conferences pertained to administrative matters; twelve
conferences were specifically explained to the jury with judicial
clarification; eleven conferences were unexplained. In those
instances where there was a sidebar pertaining to administrative
matters or clarification by the judge following the sidebar, we
are satisfied that the absence of a recorded sidebar does not
interfere with our appellate review.
Defendant contends that in specific instances where a
sidebar was unrecorded and there was no post-sidebar conference
clarification, the trial judge made prejudicial rulings which
cannot be properly reviewed by this court in the absence of a
verbatim record of the sidebar colloquy. Yet, our independent
review of the record discloses the opposite. In each of
defendant's specific claims, we have reviewed the transcript,
both immediately preceding and following the sidebar. We are
readily able to discern each issue discussed and, from counsel's
conduct following the sidebar, the purpose of the sidebar and the
judicial ruling which prompted counsel's subsequent conduct or
question. We need not review each of defendant's specific
objections. Two objections are illustrative and explain our
methodology in reviewing defendant's claim of plain error.
The Passaic County Indictment referred to defendant as "Jose Paduani A/K/A Marijuana." It is clear from the record that "Marijuana" was not an alias but simply a street name or nickname by which defendant was known in his neighborhood. At a pre-trial conference, the judge directed that defendant's nickname not be
used by the prosecutor in his opening statement or in any
reference to the indictment.
As noted in Part I, each victim gave a statement to the
investigating detectives on November 16, 1994, indicating that
the assailant who exited the yellow cadillac holding a gun was a
person known to each of them as "Marijuana." Each victim
identified defendant from police photographs as the person he
knew as "Marijuana."
One sidebar conference to which defendant assigned prejudice
is the following:
The Prosecutor: And you saw how many
individuals?
Mr. Diaz: Two.
Q: Two. Okay. Did you recognize them?
A: Well, we went to the, I saw like another
person, like, it was like, couldn't even see
the other person wasn't on a light, that's
when I said, I recognized like the face
looked familiar and that's when I seen
Marijuana, Marijuana is his name.
Q: Jose?
A: Jose, I did not know their names.
Defense Counsel: Judge, may we approach?
(Off the record discussion at side bar)
Q: So these two individuals that were
outside the car, what did you notice about
them?
A: Stocky build and like I think I said hair,
hair was waving up and the gun --
Q: Gun, who had a gun?
A: I believe it was Marijuana, Jose Paduani.
Q: Jose Paduani had a gun?
A: Yes.
It is clear from this illustration that the purpose of the
sidebar requested by defense counsel was to seek a clarification
of the use of the name "Marijuana" by the witness, Diaz, or by
the prosecutor, to identify defendant. We are able to conclude
that although the judge prohibited the use of the name
"Marijuana" in the State's opening statement, he ruled at sidebar
that the name "Marijuana" could thereafter be used during the
trial. While the reasons for the judge's decision would be
helpful for appellate review, we can discern no prejudice to
defendant by its omission from the record. We also note that
defense counsel did not object to the non-recordation of the
sidebar conference.
The second objection references the State's direct examination of investigating police officer Al Camacho. Camacho had been asked to describe the victims during his initial contact with them at the crime scene shortly after midnight on the morning of November 16, 1994.
Q. And could you describe their -- the way they acted and describe -- what I mean by that is their demeanor.
A. Both of the complainants were shaken as
though they had went through some type of
traumatic incident.
Q. So they were -- there was some type of
emotional experience that you feel they had
experienced, is that correct?
A. Yes, sir.
Q. Some type of trauma. And being in the
business that you're in, you see quite a
number of individuals --
Defense Counsel: Objection to what he
normally sees.
Prosecutor: Judge, it's by way of
foundation. It may be in reverse, but it's
by way of foundation.
The Court: I'll allow it.
Q. And in your type of work, sir, you see
people who have been traumatized, is that
correct?
A. Yes, sir.
Defense Counsel: Judge, are we going to
qualify this witness as an expert?
Prosecutor: That's not necessary.
The Court: Just a general background, Mr.
Baldi (defense counsel).
Prosecutor: Judge, can I approach?
(Sidebar discussion held off the record)
Q. Did you speak to both of these
individuals?
A. Yes, sir.
Q. And did you ask them what happened?
It is obvious that at sidebar the court ruled favorably for
defendant, as the prosecutor immediately shifted his emphasis
from the victims' demeanor to questions relative to the alleged
criminal episode. Clearly, the defense was not prejudiced by the
unrecorded sidebar conference which itself was prompted by
defendant's prior objection to the State's questions.
Upon our review of the entire record, we are able to
conclude, as did the Delaware Supreme Court in Jensen v. State,
482 A.2d 105 (Del. 1984), regarding the unclarified sidebar
conferences here, either "(a) that no change occurred in the line
of questioning following the sidebar; (b) that the record is
sufficient to indicate the substance of the sidebar, or (c) that
the record discloses no showing of prejudice sufficient to
require reversal as a matter of law." Id. at 119.
We also note that in one of defendant's examples of error,
the unrecorded sidebar conference arose in the context of the
State's use of a prior inconsistent statement of one victim.
Although the judge's ruling at sidebar is omitted from the
record, the exact ruling is readily available for review in the
transcript of the Rule 104 evidentiary hearing, in which the
trial judge fully explained his ruling, correctly relying upon
State v. Gross,
216 N.J. Super. 98 (App. Div.), certif. denied,
108 N.J. 194 (1987), and aff'd,
121 N.J. 1 (1990), admitting the
prior inconsistent statement. See N.J.R.E. 803(a)(1).See footnote 3 Thus,
we are able to conclude that the unrecorded ruling at sidebar was
consistent with the judge's prior recorded rulings on the same
issue.
In Point II, defendant contends that the use of his street name "Marijuana" during trial was improper. The use of defendant's street nickname during trial cannot serve as a per se predicate for reversal. The State argues that the admission of defendant's nickname was proper because it was relevant to the State's case, and that the court's limiting instruction to the jury regarding the use of such testimony prevented any prejudice to the defendant. We agree.
As we have noted, this case did not involve the use of an alias as in State v. Salaam, 225 N.J. Super. 66 (App. Div. 1988), where the trial judge twice referred to the defendant as "Abdul Haqq Salaam, also known as Willie Favors." Id. at 72. In Salaam, the defendant specifically raised as a point of error that "[he] was denied a fair trial by the use of an alias in the indictment and by the trial court's repeated reference to defendant's alias when addressing the jury." Unlike Salaam, defendant here did not have an alias; he simply had a nickname by which he was known to the victims.
Still, although a nickname is not an alias, we think that the principle enunciated in Salaam that "the fact of alias names should be kept from the jury unless relevant for some purpose," id. at 72 (citations omitted), is persuasive in instances where a defendant has a pejorative nickname, such as "Marijuana" or "Trouble." As noted in Salaam: "The principle [sic] objection to the use of an alias in a criminal proceeding is that an alias
implies that the defendant belongs to the criminal class and
thereby prejudices the jury." Id. at 73 (citations omitted).
"However, the majority of decisions involving this issue hold
that the admission of irrelevant aliases into evidence will not
afford a basis for reversal unless some tangible form of
prejudice is demonstrated, i.e., where such names have been
intentionally offered as indicia of guilt." Ibid. (citation
omitted). That was not the case here. The testimony was clearly
relevant because each defendant was identified to the police by
use of a nickname. In fact, defense counsel during trial
referenced defendant by use of his nickname. Moreover, defendant
has pointed to no tangible form of prejudice attributable to the
use of his nickname during trial and our independent review of
the record reveals none.
Defendant contends that the trial judge erred in imposing a manifestly excessive sentence and that he failed to articulate why the aggravating factors presented resulted in a sentence in excess of the presumptive term and in the imposition of the maximum period of parole ineligibility. We disagree.
Appellate review of a sentence is restricted to whether the determination of the sentencing factors was appropriate, whether the determination was supported by competent evidence in the record, and whether the sentence is so unreasonable that it shocks the judicial conscience. State v. O'Donnell, 117 N.J.
210, 215-16 (1989); State v. Roth, 95 N.J. 334, 364-65 (1984);
State v. Bull,
268 N.J. Super. 504, 508-09 (App. Div. 1993),
certif. denied,
135 N.J. 304 (1994). "An appellate court is bound
to affirm a sentence, even if it would have arrived at a
different result, as long as the trial court properly identifies
and balances aggravating and mitigating factors that are
supported by competent credible evidence in the record."
O'Donnell, supra, 117 N.J. at 215; State v. Jarbath,
114 N.J. 394, 400-01 (1989); Roth, supra, 95 N.J. at 364-65.
In sentencing the defendant, the trial court listed as
aggravating factors the risk that defendant will commit another
offense, defendant's prior criminal record, and the need to deter
defendant and others from violating the law. N.J.S.A. 2C:44-1a(3); N.J.S.A. 2C:44-1a(6); N.J.S.A. 2C:44-1a(9). The court
found as a mitigating factor that the imprisonment of defendant
would entail excessive hardship to himself or his dependents.
N.J.S.A. 2C:44-1b(11). The Court's comments with regards to
these findings are presented below.
The Court finds as aggravating factors number
three, the risk that this defendant will
commit another offense, as evidenced by his
six prior convictions, this conviction which
-_ I mean, this offense which occurred
notwithstanding gainful employment that he
was engaged in, his prior record as it
relates to resisting arrest which sort of
demonstrates a disregard of authority, prior
weapons charge which again is similar in
nature to what occurred here, the possession
of a handgun for an unlawful purpose.
So I feel that there is a risk that this defendant will commit another offense. I also find number six, the extent of his prior record and the seriousness of the offenses
for which he's been convicted as previously
noted.
Number nine, the need to deter this
defendant and others from violating the law.
So I find as aggravating factors number
three, six, and nine.
I do find as number _ as mitigating
factor number 11, that the imprisonment of
the defendant would entail a hardship on his
dependents. He has two dependents. There is
a court order for support. He has complied
with the support order and as a matter of
fact is paid in advance.
However, in weighing the mitigating and
the aggravating factors, I find that the
aggravating factors clearly and substantially
outweigh the mitigating factor.
The court made some additional comments regarding the need
to deter and the seriousness of the crime.
Mr. Paduani, I had begun to make some
comments last week regarding the imposition
of sentence here, particularly in light of
the nature of the offenses for which you're _
you were convicted here involved a shooting
on the public streets of Paterson, a
residential neighborhood.
I indicated to you how that kind of
conduct certainly impacts on the entire
community. It affects business attitudes,
perhaps whether or not they want to come into
a community and establish a business, where
whether other individuals want to live in
that community because of the safety factors
or the criminality, level of criminality
that's impacted.
So that this act had an impact over and
above what it may have had on the victims of
this particular incident.
I do recall that one of the victims, Mr.
Rodriguez, came in and still was trying to
make an effort to sort of absolve you of any
responsibility, apparently did not consider
this a very big deal.
But the Court does, the State does
consider it a big deal because any innocent
person sitting in the living room watching
T.V. could have been a victim of this bullet
that you fired or these bullets that you
fired in a random and just indiscriminate
manner without any consideration for anybody
that may have been on the street or anyone
else who was out on the street at that
particular time.
So it's not something that's just between you
and Mr. Rodriguez and the other victim of
this alleged incident.
As for the minimum term without parole, the Court
articulated the reasoning behind the term imposed in the
following comments:
The Court in such a hearing as this is
allowed to consider the testimony that was
introduced at trial, anything that may appear
in the presentence investigation, and any
other information that might be relevant on
that particular issue. While the Court will
not address the question of operability in
this issue -_ in this instance, Mr.
Chidiac,See footnote 4 because I think the, as the Court
recalls the testimony and what was produced
here, I think it's clear that this particular
weapon was operable.
There was testimony from the both or one
or both of the recanting witnesses that they
observed what to be appeared to be a handgun
in the hand of Jose Paduani that it was
pointed in their direction. That they heard
gunshots or that immediately they dug down
and felt and heard something striking the
car. And I believe the testimony said there
were three items that struck the car. The
Court can infer from the immediacy of the
objects striking the car from the time that
they first observed this defendant and the
other co-defendant pointing the gun in their
direction that these were bullets.
Now while you may be correct that the
police testimony or procedure in not
producing pictures of the bullet holes should
there have been any, may not have been
sufficient, nevertheless, I'm only required
by a preponderance of the evidence to find
that there was a firearm, and based on the
credible testimony of the witnesses at the
trial, I find that there was a firearm
involved and that your client is subject to
the Graves Act provisions.
Based upon our standard of review, we can find no error in
the judge's decision to impose a sentence exceeding the
presumptive term, or in his decision to impose the maximum period
of parole ineligibility.
Affirmed.
Footnote: 1 Co-defendant Richard Paduani filed a separate appeal, A-5320-95T4. We have filed a separate opinion affirming his conviction and sentence. Footnote: 2 The Pacific Reporter spells the state name with an apostrophe: "Hawai'i." Footnote: 3 In view of this observation, we need not offer any additional comment on defendant's Point III. Footnote: 4 Norman J. Chidiac, defendant's counsel.