STATE OF NEW JERSEY VS. WILLIAM F. ROSADOÂ (15-02-0127 AND 15-09-0615, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1887-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM F. ROSADO, a/k/a
WILLIAM M. ROSADO,
Defendant-Appellant.
__________________________________
Submitted May 10, 2017 – Decided June 8, 2017
Before Judges Alvarez and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 15-
02-0127 and Accusation No. 15-09-0615.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alicia J. Hubbard, Assistant
Deputy Public Defender, of counsel and on the
brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant William Rosado appeals from a judgment of the Law
Division finding him in violation of his probation and from the
imposition of a custodial sentence. We affirm.
By way of background, defendant was indicted for third-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(7), and fourth-degree
theft by unlawful taking, N.J.S.A. 2C:20-3. Thereafter, the State
lodged an accusation charging him with fourth-degree stalking,
N.J.S.A. 2C:12-10(b).
On September 8, 2015, defendant pled guilty to the theft by
unlawful taking and to the stalking charge. On October 23, 2015,
defendant was sentenced in accordance with the plea agreement to
concurrent eighteen-month periods of probation along with fines
and penalties. The judge also imposed a permanent stalking
restraining order (RO). The RO restrained defendant from any
contact with N.S., including at her residence and place of
employment.
In November 2015, defendant was charged by the Union County
Probation Department with violating the terms of his probation.
On December 3, 2015, a hearing was conducted before the judge who
imposed the sentence.
During the hearing, N.S. testified that three days after the
RO was in place, defendant sent her numerous texts. She further
testified that upon returning from a vacation, she observed
2 A-1887-15T4
defendant outside her residence by a tree. While at that location,
defendant called her cell phone. N.S. spoke to defendant who told
her he loved her and was sorry. She recognized both defendant's
voice and the cell phone number from which the call was placed.
Eventually, N.S. left her residence by car.
On another occasion, N.S. observed defendant as she entered
the apartment building of a friend she was visiting. Defendant
attempted to follow her, causing N.S. to enter the apartment and
secure the door. She contacted the Woodbridge Police Department,
who responded to the scene, but defendant was not located.
The judge found N.S. to be credible. In determining that
defendant violated the terms of the RO, the judge held:
In terms of the house incident in Rahway,
clearly[,] as I went over the credibility
factors, this witness made her own personal
observation. She saw the [d]efendant standing
across the street by a tree. She was receiving
phone calls. She saw him making or on his
phone while her phone was ringing with his
number coming up across the street.
. . . .
. . . She sees him standing there. She sees
him on the cell phone. She sees her phone
lighting up with his number on it and she has
a conversation with him where he starts making
comments to her.
Clearly, a communication. Clearly, in
violation of the restraining order. Clearly,
it's verbal. And under the circumstances[,]
it would be the type of communication to cause
3 A-1887-15T4
annoyance or alarm. In terms of the
Woodbridge incident, I do believe she
personally identified the [d]efendant that
day. It doesn't matter. He knew based on
this restraining order, stay away. You see
her, you go the other way. He didn't.
He pursued her into a building that she
identified him as trying to get into the door,
which she had just closed and then went into
an apartment to lock herself or secure herself
in the apartment, which was door number two
inside the common entranceway of the building.
She [saw] him on the outside of the
building. She said candidly he came out of
[nowhere]. Now, I mean we know no one can
come out of [nowhere]. But what does that
mean?
. . . .
And she also indicated that she felt
scared and nervous when he was calling her on
the phone. And when she saw him in Woodbridge,
she felt scared. Stalking restraining orders
are a piece of paper. They're intended to
tell someone stay away. That message needs
to be heard. It was a condition of probation.
And what shocks the conscience of this
[c]ourt is that I issued this order on the
23rd. And somewhere after [October 23], but
on or before November 2[], specifically
October [] 30[], we had incidents with the
[d]efendant violating the order roughly a week
old.
So I do find by a preponderance of the
evidence that this [d]efendant violated the
conditions of his restraining order, which the
[c]ourt took time to explain to him in open
court when he was being served as how this
applies and what it means, stay away, no
4 A-1887-15T4
contact. The [c]ourt couldn't be more clearer
on that point.
After hearing from the State, defense counsel, and defendant,
the judge imposed an eighteen-month custodial sentence with a
nine-month period of parole ineligibility on each charge to be
served concurrently. The judge stated the reasons for the
sentence:
This [c]ourt finds incarceration is
required to protect the public as this
[d]efendant fails to accept the privilege of
probation, defies the law, and defies the
standard of conditions of probation. His
adjustment is poor. He violated the order
within days. And as a result[,] the [c]ourt
finds that he disregarded the purposes of
probationary supervision and the goals of a
probation sentence.
The [c]ourt finds aggravating factors
[three, six, and nine]. The [c]ourt finds
mitigating [ten] no longer applies.
Accordingly, I'm convinced aggravating's
[three, six, and nine] outweigh the non-
existent mitigating's. Mr. Rosado, I note
your prior record. I find you're no longer a
good candidate for probation. Your prior
sentence is vacated.
And I'm sentencing you as follows.
You're remanded to the custody of the
[Department of Corrections] for [eighteen]
months, with a [nine] month minimum. This
will run consecutive to your other case as
they're separate instances. You're discharged
from probation without improvement. Your
supervision fee is vacated. All sums will be
collected through the C.E.U. Now, I do need
an update on jail credit.
5 A-1887-15T4
On appeal, defendant argues that the judge erred in finding
that he violated probation by a preponderance of the evidence and
that the sentence was excessive. We disagree.
Upon an allegation that a defendant has violated a condition
of probation, the court will not hold a new criminal prosecution
but rather a hearing as "part of the corrections process." State
v. Reyes, 207 N.J. Super. 126, 134 (App. Div.), certif. denied,
103 N.J. 499 (1986); State v. Lavoy, 259 N.J. Super. 594, 600
(App. Div. 1992). Thus, the court need only be satisfied "by a
preponderance of the evidence that defendant has inexcusably
failed to comply with a substantial requirement imposed as a
condition of probation." State v. Jenkins, 299 N.J. Super. 61,
73 (App. Div. 1997) (quoting Reyes, supra, 207 N.J. Super. at
137). N.J.S.A. 2C:45-3(a)(4) authorizes "[t]he court, if
satisfied that the defendant has inexcusably failed to comply with
a substantial requirement imposed as a condition of the order . .
., [to] revoke the . . . probation and sentence . . . the
defendant." Further, "[w]hen the court revokes . . . probation,
it may impose on the defendant any sentence that might have been
imposed originally for the offense of which he was convicted."
N.J.S.A. 2C:45-3(b).
Our review of a trial judge's fact finding underlying a
violation of probation is "exceedingly narrow." See State v.
6 A-1887-15T4
Locurto, 157 N.J. 463, 470 (1999); see also State v. Johnson, 42
N.J. 146, 161-62 (1964). We defer to the lower court's findings
of fact, especially those that are substantially influenced by the
trial judge's opportunity to hear and see the witnesses and to
have the sense of the case. State v. Elders, 192 N.J. 224, 244
(2007). Thus, we will not disturb a court's finding of a violation
of probation when supported by sufficient credible evidence in the
record. See Johnson, supra, 42 N.J. at 162.
Against this backdrop, we reject defendant's contention that
there was insufficient proof to warrant a finding of a violation
of probation. As the judge appropriately noted, within days of
the sentence and issuance of the RO, defendant engaged in conduct
clearly violative of that which was prohibited and placed N.S. in
fear of her safety. This was not the conduct of a person who
intended to abandon the course of conduct that led to his
conviction. Rather, it was indicative by both the conduct itself,
i.e., stalking, and the timing of the conduct, i.e., within days
of the sentence that defendant was not a suitable candidate for
probation.
Nor do we conclude that the sentence was erroneous. When
imposing a sentence, the court must identify and weigh all of the
relevant aggravating factors counterbalanced with the mitigating
factors supported by credible evidence. State v. Dalziel, 182
7 A-1887-15T4
N.J. 494, 504-05 (2005). A court shall apply such mitigating
factors as are present in the record or state why such factors are
rejected. State v. Bieniek, 200 N.J. 601, 609 (2010). When a
court imposes a sentence for a violation of probation, the court
must weigh all aggravating and mitigating factors and a violation
of probation is not itself considered to be an aggravating factor.
See State v. Baylass, 114 N.J. 169, 176 (1989). "The only
aggravating factors the court may consider are those that existed
at the time of the initial sentencing." Ibid.In imposing sentence, the judge hewed to Baylass by
considering only those aggravating factors that existed at the
time of the initial sentence. Ibid. Further, since the sentence
imposed was one that might have originally been imposed for the
offenses for which defendant was convicted, it was within the
appropriate statutory range. N.J.S.A. 2C:45-3(b).
Finally, predicated upon our review of the record and in
light of our deferential standard of review, the sentence imposed
does not shock our judicial conscience. State v. O'Donnell, 117
N.J. 210, 215-16 (1989).
Affirmed.
8 A-1887-15T4