March 20, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ISRAEL ARROYO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 04-10-1652.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2008
Before Judges Coburn and Chambers.
The indictment charged defendant, Israel Arroyo, with aggravated assault, N.J.S.A. 2C:12-1(b)(1) ("FIRST COUNT"); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) ("SECOND COUNT"); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)("THIRD COUNT"). The case was tried before a jury, and at the end of the State's case defendant moved for dismissal of all the charges. The motion was denied, and the jury found defendant not guilty on the third count but guilty on the first two counts. Defendant then moved for a new trial on the ground that the verdict was against the weight of the evidence. The motion was denied. Thereafter, the judge merged the second count into the first count, and sentenced defendant to imprisonment for five years with a NERA 85% parole disqualifier. Defendant appeals, and we affirm.
Joress Tillman was shot in his chest on July 9, 2004. Before and at trial, Tillman identified defendant as the shooter. He had seen defendant on more than one hundred occasions before the shooting and he knew that defendant was his girlfriend's father. On numerous occasions, Tillman had been in defendant's bar and had seen him there, and he had often seen a photograph of the defendant that Tillman's girlfriend had. Nonetheless, the primary issue at trial was the validity of the identification.
On July 8, 2004, Tillman and Maritza Arroyo, his girlfriend, had an argument on the street outside of her apartment, where they lived together, in Jersey City. She had been drinking and was under the influence of drugs at the time. During the argument, she fell and broke her wrist. Police arrived and took Maritza to the hospital. The next day, Tillman visited Maritza in the hospital and then returned to her apartment around noon. He began packing their belongings because they were being evicted from the apartment. Maritza's mother arrived, and Tillman told her that Maritza had broken her wrist because she was drinking and using drugs.
After packing for awhile, Tillman left the apartment, returning later that day, at which time Maritza came home and they spoke. Shortly after their conversation he left again and did not return until about midnight, accompanied by his friend, Angel Selgado. Since the electricity had been turned off, Tillman lit four candles in the living room. Although he did not light a candle in the bedroom, he noted that when the bedroom window covering was pulled back, the room received light from a car dealership across the street.
After he was in the apartment for about fifteen minutes, he saw the sheet over the bedroom window move. Because he thought it was his brother playing a joke on him, he snuck up to the window, creeping along the bedroom wall. Then he pulled the sheet from the window and saw defendant standing outside the window, which was open. Defendant said, "Who's Reese?" to Tillman. Tillman, whose nickname is Reese, then replied, "What are you looking for him for?" Defendant said, "You disrespected my wife." [Defendant's brief notes that Tillman's statement to the police did not include that remark.] Tillman said, "I'm Reese. I didn't disrespect your wife." As Tillman uttered that statement, defendant raised his handgun and shot Tillman in the chest. Tillman was able to say to defendant that he knew him, after which defendant climbed over a gate in the backyard and ran away. Selgado apparently heard the shot and responded by running into the backyard, where Tillman told him who the shooter was. After looking for defendant's car, Selgado drove Tillman to the hospital.
After surgery was performed on his wound, Tillman spoke to two detectives who had arrived at the hospital. He told them that Maritza's father had shot him and gave them an accurate physical description of defendant. The police returned with a picture of defendant, and Tillman said that was the man who had shot him.
Although Tillman testified that he had only had one beer that day, the hospital records indicated that he said he consumed "large amounts of alcohol every day." He also testified that he used cocaine on a daily basis, but not on the day he was shot.
Tillman admitted that he had four convictions, two for burglary, and one each for aggravated assault and drug possession.
During his cross-examination, Tillman said that he had six stab wounds on his body, which were mostly from fights. Then he said they were not all stab wounds, but that some of his injuries came from falling down or getting scratched. Defendant's attorney asked whether a man named Richard Lane had been looking for him on the night of the shooting. The prosecutor objected to the question, and the judge sustained the objection. The prosecutor did not say why he was objecting, and the judge did not say why she was sustaining the objection. Defendant's attorney made no offer of proof on the subject.
Tillman also admitted that about a week after the incident, Maritza filed a domestic violence complaint against him for harassment and that a restraining order was issued against him.
The operating surgeon testified that as a result of the gunshot wound, Tillman had low blood pressure and was hypertensive. He described Tillman's condition as critical, noting that his injuries were potentially lethal. He also noted that Tillman was drunk when he arrived at the hospital and that he tested positive for cocaine and tetrahydride.
Detective Henning testified that he took Tillman's statement at the hospital, and that defendant turned himself in to the police the next day. He also indicated that Tillman was not sure of the shooter's name, but identified him as his girlfriend's father, and said he thought his last name is Arroyo.
The defense presented one witness, a Jersey City police officer who had known defendant for more than twenty years. He said that defendant was a law abiding, family man who frequently attends church and who is helpful to the community.
Defendant offers the following arguments for reversal of his conviction:
DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
DEFENDANT'S MOTION TO DISMISS SHOULD HAVE BEEN GRANTED.
THE TRIAL COURT'S EVIDENTIARY RULING SUSTAINING STATE'S OBJECTION TO QUESTIONING WITNESS ABOUT SOMEONE LOOKING FOR HIM ON DATE OF SHOOTING SO PREJUDICED THE DEFENSE AS TO DENY DEFENDANT HIS CONSTITUTIONALLY GUARANTEED RIGHT TO A FAIR TRIAL.
THE PROSECUTOR'S COMMENTS THAT HE WOULD NOT BRING THE GUN IF HE SHOT SOMEBODY, THAT THE RESTRAINING ORDER WAS NOT VALID, AND COMMENTS ON REVENGE THEORY WENT BEYOND THE FACTS OF THE JURY AND EXCEEDED THE BOUNDS OF FAIR COMMENT THUS DEPRIVING DEFENDANT OF A FAIR TRIAL (raised in part).
PROSECUTOR'S STATEMENT REGARDING EYESIGHT WAS IMPERMISSIBLE AS REQUIRING EXPERT OPINION (NOT RAISED BELOW).
THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO REQUEST AN N.J.R.E. 104(a) HEARING FOR ADMISSION OF TESTIMONIAL EVIDENCE (NOT RAISED BELOW).
THE DEFENDANT'S CONSTITUTIONAL RIGHTS WERE INFRINGED BY AMENDMENT OF THE GRAND JURY INDICTMENT.
DEFENDANT'S SENTENCE WAS EXCESSIVE BECAUSE THE MITIGATING CIRCUMSTANCES OUTWEIGHED THE AGGRAVATING CIRCUMSTANCES.
In support of his first two points, defendant relies on inconsistencies in Tillman's testimony, Tillman's drunkenness and the possible effects of narcotics on his ability to make accurate observations, the limited lighting in the bedroom where the attack occurred, and the restraining order obtained by Maritza. Defendant concludes by asserting that "no right-thinking jury could possibly find [defendant] guilty beyond a reasonable doubt based on this kind of evidence."
A trial judge is not authorized to set aside a jury's verdict on the ground that it is against the weight of the evidence "unless, having due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. On review, we are obliged to "take into account the views of the trial judge insofar as firsthand observation may be significant . . . ." Dolson v. Anastasia, 55 N.J. 2, 7 (1969) (quotation and citation omitted). On the other hand, it remains our duty "to determine whether . . . there was a manifest denial or miscarriage of justice." Ibid. In essence, the question is whether a rational jury could have determined that all the elements of the crime were present. State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993).
The only element at issue here is the identification. Given the circumstances leading up to the shooting, the victim's numerous prior observations of defendant, the duration of the confrontation, the remarks made by defendant during the confrontation, and the lighting provided from outside the bedroom when the victim removed the window covering, we perceive no basis for saying that the jury was either mistaken or prejudiced. Therefore, we affirm the denial of the new trial motion both for the reasons indicated and for the reasons expressed by the trial judge. Since the State offered satisfactory proof of identification, as well as the other elements of the crimes charged, the judge was also quite obviously correct in denying the motion to dismiss at the end of the State's case. State v. Walker, 322 N.J. Super. 535, 544-45 (App. Div.), certif. denied, 162 N.J. 487 (1999).
Defendant's third point concerns the judge's ruling sustaining the prosecutor's objection to questions about whether Richard Lane was looking for Tillman on the day of the shooting. Since this was an evidentiary ruling, it cannot be disturbed on appeal "unless it is 'wide of the mark.'" State v. Fortin, 189 N.J. 579, 597 (2007) (citing State v. Marrero, 148 N.J. 469, 484 (1997)). Defendant now argues that he was trying to establish that a third person might have shot Tillman. However, he did not so argue below. Indeed, he made no argument at all on the issue; nor did he make an offer of proof. In State v. Koedatich, 112 N.J. 225, 312 (1988), the Court held that testimony regarding another person who might have committed the crime does not have to be admitted unless there is evidence linking that person to the crime. There was no such evidence introduced or offered in the instant case. Therefore, we cannot say the judge's ruling was an error.
Defendant's fourth, fifth and eighth points are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2). His sixth point, involving a charge of ineffective assistance of counsel, is not ripe for consideration now, and is best left for factual development during a hearing on a motion for post conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).
Last, we turn to defendant's seventh point, which asserts that his constitutional rights were infringed by the judge's amendment of the first count of the grand jury indictment. As returned by the grand jury, this count, in pertinent part, charged as follows:
ISRAEL ARROYO ON OR ABOUT THE 9TH DAY OF JULY 2004, IN THE CITY OF JERSEY CITY . . . purposely or knowingly did cause serious bodily injury to Joress Tillman, contrary to the provisions of N.J.S. 2C:12-1b(1) . . . .
Before trial, the prosecutor asked that this count of the indictment be amended to also charge defendant with attempting to cause serious bodily injury. He relied, in part, on the fact that N.J.S.A. 2C:12-1(b)(1) reads as follows:
A person is guilty of aggravated assault if he:
(1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]
He noted that when the case was presented to the grand jury the entire subsection was read and the grand jury voted thereon. He represented that the omission of the attempt language in the indictment was a typographical error. Defendant objected on the ground that the amendment added a charge to the indictment. After reviewing the grand jury transcript, the judge allowed the amendment because the jury had voted to indict without identifying separate parts of the statute as the basis for its decision.
"[A]n indictment is merely a pleading device and never an end in itself." State v. LeFurge, 101 N.J. 404, 419 (1986) (citation omitted). While an "indictment must be sufficiently specific 'to preclude the substitution by a trial judge of an offense which the grand jury did not in fact consider or charge,'" id. at 415 (quoting State v. Boratto, 80 N.J. 506, 519 (1979)), the interpretation of an indictment in charging a jury "cannot be permitted to deteriorate into a mere game . . . on the basis of some arcane notion of pleading," State v. Talley, 94 N.J. 385, 394 (1983).
Thus, we do not "construe the language of an indictment rigidly in the absence of any indication that a case was presented to a trial jury on a different basis than to the grand jury or a showing of other prejudice to the defendant." State v. Lopez, 276 N.J. Super. 296, 303 (App. Div.), certif. denied, 139 N.J. 289 (1994).
Here, the grand jury was read N.J.S.A. 2C:12-1(b)(1) in full, and voted to indict defendant for violating that section of the law. The language added by the trial judge did not result in a different or more serious charge. And Rule 3:7-4 specifically provides that a judge may amend the indictment . . . to correct an error in form or the description of the crime intended to be charged . . . provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits.
Defendant has not suggested any way in which he was prejudiced by the amendment and the amendment does not charge another or different offense. Rather, viewed sensibly, this amendment merely corrected the description of the crime intended to be charged. Therefore, we perceive no ground on which to rule that the judge erred.
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