April 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRIAS OZONIA-AMBIERIX*FN1 , DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-12-3039.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Wefing, Parker and R. B. Coleman.
Following a trial before a jury with co-defendant Leonel B. Reyes, defendant Frias Ozonia-Ambierix appeals from a judgment of conviction based upon a jury verdict finding him guilty of armed robbery, N.J.S.A. 2C:15-1, but not guilty of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d and not guilty of possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5d. We have considered the arguments advanced by defendant in light of the facts and the applicable law, and we affirm the conviction and the sentence imposed.
The record discloses the following facts. Between May and November 2002, Stelianos Lazaridis (Lazaridis) worked as a supervisor at a nightclub in the Bronx, New York, owned by George Corkis (Corkis), who lived in Fort Lee, New Jersey. Lazaridis was responsible for taking the nightly receipts from the Bronx club and a Brooklyn club, also owned by Corkis, to Corkis's home in Fort Lee. During the week, if the daily receipts were not a significant amount, Lazaridis would take the money to his own home in Cliffside Park for the evening and deliver it to Corkis the next day. The weekend receipts, however, involved such a significant amount of money, Lazaridis would take the cash to Corkis's home every weekend night. The nightclub used plastic bags with combination locks to store and transport the money. When Lazaridis left the club each night, he was accompanied to his car by a bouncer who then followed him in another vehicle as far as the George Washington Bridge.
During the early morning hours of Saturday, November 9, 2002, Lazaridis took the evening's receipts to Corkis's home in Fort Lee and delivered the money to him. Lazaridis then drove to his home in Cliffside Park, arriving there at about 5:30 a.m. Prior to parking his car, Lazaridis drove around the block to make sure that no one was in the area. He implemented these safety measures after his car was broken into a few years earlier, and also because someone had once approached him after leaving the club. Lazaridis had the "feeling [that] people were following [him]."
After driving around the block, Lazaridis returned to his street and parked the car. He exited his car, carrying some personal belongings, his cell phone and some compact disks, and wearing a gold bracelet on his wrist. As Lazaridis walked toward his home, a man wearing a black jacket and a baseball hat, later identified as defendant, suddenly appeared at his side "from nowhere." Both men stopped. As Lazaridis changed his traveling direction, Frias did the same. Lazaridis walked toward his car and Frias followed. Lazaridis kept the car between himself and Frias, positioning Frias at the opposite end of the vehicle.
Finally, Lazaridis asked, "What the f--- you want?" Frias approached Lazaridis while holding in his hand a knife measuring between five to seven inches long and two inches wide. When Lazaridis saw the weapon, he screamed and yelled "police" several times. Frias never made any demand for property nor did he make any overt gesture toward Lazaridis.
As Lazaridis ran away, he tried to dial 911 on his cell phone. While running down the street away from defendant, Lazaridis saw a second man, later identified as co-defendant Reyes, approach him. Reyes came running quickly toward Lazaridis from the direction of Anderson Avenue with his hand in his pocket. Both suspects fled down Anderson Avenue before turning east toward Jersey Avenue.
After several attempts, Lazaridis was finally able to contact police on his cell phone and to report what had happened. Cliffside Park Police Officer Pasquale Dorito was dispatched to the area of Jersey and Anderson Avenues. The officer met with Lazaridis, who appeared very nervous and excited. Lazaridis told the officer what happened and gave a physical description of the two men involved. Officer Dorito and Lazaridis then drove around the neighborhood together in the patrol car looking for the suspects. When they could not find them, Officer Dorito drove Lazaridis home.
Cliffside Park Police Officer Michael Messenger was also on duty in the neighborhood during the early morning hours on November 9, 2002. After receiving a call from police headquarters with a description of the two suspects, Officer Messenger drove to the intersection of Jersey and Anderson Avenues. He drove through the surrounding neighborhoods, including Palisade Avenue, looking for the suspects. When Officer Messenger saw two men, who fit the description of the suspects, walking north on Palisade Avenue, he directed them to stop. The men, later identified as defendant and Reyes, complied with the officer's instruction. When the officer asked the men what they were doing and why they were in the area, Reyes responded, in English, that they were just walking around. Frias did not respond. Reyes then explained that they had taken a cab to visit his girlfriend who lived in Passaic, but were mistakenly dropped off in Cliffside Park. Neither was able to explain why the cab had dropped the men off in Cliffside Park rather than Passaic.
Officer Messenger contacted police headquarters about the stop. As a result, Officer John O'Toole went to Lazaridis's home, picked him up and drove him to Palisade Avenue. At the direction of the police, the taller of the two suspects, Reyes, walked up to the police car where Lazaridis was seated. From a distance of about ten feet, Lazaridis was able to identify Reyes as one of the suspects. Next, the police instructed Reyes to place on his head the tan beret he was holding. When he did, Lazaridis responded by saying he was "absolutely sure" Reyes was one of the assailants. Then, defendant, the shorter of the two men, walked up to the police car where Lazaridis was seated. At that time, Lazaridis identified defendant by saying "absolutely, that's him. He's the one with the knife."
The police arrested defendant and Reyes after Lazaridis identified both of them as the suspects. The police, however, were unable to locate the knife after searching both men and the surrounding area.
Defendant and Reyes were tried together between July 2, 2003 and July 10, 2003. On July 10, 2003, the jury returned its verdicts finding defendant guilty of first degree armed robbery and finding Reyes guilty of second degree robbery as a lesser offense under count one. Both men were found not guilty on the weapons offenses, counts two and three of the indictment. On September 5, 2003, Reyes was sentenced to a seven-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On June 24, 2005,*fn2 the court sentenced defendant to a fifteen-year prison term subject to a period of parole ineligibility and a five-year term of parole supervision under NERA. The court ordered that this term be served consecutive to a federal prison term defendant was then serving. On August 12, 2005, defendant filed a Notice of Appeal from the judgment of conviction entered on June 30, 2005.
On appeal, defendant raises the following points of asserted error:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF QUESTIONING BY THE PROSECUTOR WHICH ELICITED TESTIMONY ASSOCIATING THE DEFENDANT WITH IMPECUNIOSITY.
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO COUNT I CHARGING ROBBERY.
POINT III: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (NOT RAISED BELOW).
POINT IV: THE TRIAL COURT ERRED IN INSTRUCTING THE JURY REGARDING FLIGHT.
POINT V: THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF COUNT I WAS INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE.
POINT VI: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant contends that the trial judge erred in denying defense counsel's motion for a mistrial following questions by the prosecutor regarding defendant's employment and financial status. The State submits that the prosecutor asked those questions to elicit a reason for defendant's presence on Anderson Avenue. The judge allowed the prosecutor to modify the questions by asking only if defendant had a job in New Jersey.
While we acknowledge that the questions were improper, it is left to the trial court's discretion to grant or deny a motion for mistrial because the judge is in the best position "to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 647 (1984). The appellate court should uphold the decision unless the trial court wrongfully exercised its discretion or the defendant suffered actual harm. State v. L.P., 352 N.J. Super. 369, 379 (App. Div.), certif. denied, 174 N.J. 546 (2002); State v. Labrutto, 114 N.J. 187, 207 (1989).
A prosecutor may not elicit testimony of the defendant's unemployment to show a tendency or motive to commit a crime for financial gain. See State v. Mathis, 47 N.J. 455, 471-72 (1966); rev'd on other grounds, 403 U.S. 946, 91 S.Ct. 2277, 29 L.Ed. 2d 855 (1971). Generally, "there must be something more than poverty to tie a defendant into a criminal milieu." Id. at 472. This prohibition on eliciting testimony of defendant's unemployment is not limited to the questioning of a defendant but applies also to witnesses. State v. Terrell, 359 N.J. Super. 241, 247 (App. Div.), certif. denied, 177 N.J. 577 (2003). Testimony regarding defendant's pecuniary status is not relevant to the issues in the case or to defendant's trustworthiness. See Mathis, supra, 47 N.J. at 471.
Here, during direct examination of Officer Messenger, the prosecutor asked and the officer responded about defendant's unemployed status. Defense counsel objected to the line of questioning as an inappropriate attempt to suggest motive for the crime. The prosecutor responded by arguing that the line of questioning was an attempt to elicit testimony as to defendant's purpose for being in the area at 5:30 a.m. in the morning. The defense then moved for a mistrial because the jury knew that defendant was unemployed. The court denied the motion for mistrial, offering instead to issue a curative instruction. That offer was refused by defense counsel. The court allowed the prosecutor to modify the question and simply ask whether defendant was employed in New Jersey. Viewing the record as a whole, we are convinced the denial of the request for a mistrial did not produce an unjust result.
Defendant contends that the trial court also erred in denying his motion for acquittal based on the insufficiency of evidence to sustain a robbery conviction. When a trial court considers a motion for judgment of acquittal, the applicable test is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial evidence, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
State v. Reyes, 50 N.J. 454, 458-59 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed. 2d 396 (1962)). We review this motion under the same standard as the trial court. Id. at 459; State v. Foreshaw, 245 N.J. Super. 166, 185 (App. Div.), cert. denied, 126 N.J. 327 (1991).
Pursuant to N.J.S.A. 2C:15-1(a)(2), "[a] person is guilty of robbery if, in the course of committing a theft, he
[t]hreatens another with or purposely puts him in fear of immediate bodily injury."*fn3 The State must prove, beyond a reasonable doubt, that the actor's conduct threatens the victim with or purposely puts the victim in fear of immediate bodily injury to compel the victim to give up his money or other property. State ex rel. L.W., 333 N.J. Super. 492, 497 (App. Div. 2000). The analysis is based upon the totality of the circumstances, and there are no special words or conduct required. Id. at 497; State v. Smalls, 310 N.J. Super. 285, 292 (App. Div. 1998).
Robbery, a crime of the second degree, is elevated to a crime of the first degree if a person, while in the course of committing the theft, "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). A "deadly weapon" is defined as "any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury . . . ." N.J.S.A. 2C:11-1(c).
Here, the defense moved to dismiss all three counts of the indictment, arguing that the State failed to present sufficient proof that defendant (1) threatened the victim with immediate bodily injury or purposely put the victim in fear of immediate bodily injury; (2) made a demand for the victim's money or possessions; and (3) was armed with or threatened the use of a deadly weapon. Those arguments are without merit. The State provided evidence at trial from which the jury could find that defendant shadowed the victim's movements. Defendant carried a five to seven inch long knife that he later displayed to Lazaridis. In fact, Lazaridis expressed that he was concerned for his life. And while defendant made no explicit demand for the victim's property, the totality of the circumstances do support an inference that theft was the objective of the confrontation. In short, the evidence is sufficient to sustain a conviction.
Defendant argues that the prosecutor improperly posed rhetorical questions to the jury in such a way as to infringe on defendant's Fifth Amendment rights. Specifically, defendant points to the following four questions the prosecutor posed to the jury during the summation:
Another very critical fact. Do they split up and run in opposite directions? They should have. I'll talk about that later. They run together . . . .
You want to know where the knife is? We don't know what house it was put behind. We don't know what school or what car they put it under, or who knows where it could be. It wasn't found. No fault of law enforcement, though, they didn't throw it away. They didn't lose it. It was discarded. The evidence of the crime was thrown away. They had 20 minutes to do it. They did it.
I want to know how they're getting home? They don't have the money from the robbery now. So they're stuck. They got to come up with a story and they got to hope they just blend in with the community. That would be great. And they may have blended in and they may have gotten away with it, but unfortunately for them, they stuck out like a sore thumb.
Now, we're going to talk in a moment about how these guys don't get an A for robbery or for their explanation, but think about this, does it make any sense? Who's going to visit their girlfriend's house at 5:30 in the morning, and bringing no money along from the Bronx? I submit to you that that explanation is a story to hopefully throw off law enforcement. It obviously didn't work.
Despite his failure to object to these remarks at trial, defendant maintains that these prosecutorial comments refer to his Fifth Amendment privilege against self-incrimination and, therefore, are barred by Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed. 2d 106, 110 (1965) (expanding the Fifth Amendment protection to bar court or prosecutorial comments on a defendant's refusal to testify).
Neither the court nor the prosecutor may comment to the jury on defendant's Fifth Amendment privilege to remain silent. State v. Lanzo, 44 N.J. 560, 563 (1965).
Prosecutorial misconduct may serve as grounds for reversal of a criminal conviction only when it is "so egregious as to deprive defendant of a fair trial." State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001); State v. Frost, 158 N.J. 76, 82 (1999). In determining whether prosecutorial misconduct denied defendant a fair trial, the reviewing court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. [Frost, supra, 158 N.J. at 83.]
The defense counsel's "failure to object suggests that [it] did not believe the remarks were prejudicial at the time they were made." Id. at 84. Moreover, failing to object prevents the court from the opportunity to take corrective action. Ibid. Consequently, if defense counsel did not object to any of the prosecutor's summation remarks, defendant must demonstrate plain error under R. 2:10-2. Timmendequas, supra, 161 N.J. Super. at 576.
The prosecutorial questions about the missing weapon, the reason for defendant's presence in the neighborhood and the defendant's route and method home all constitute relevant evidence of the crime. These remarks do not inferentially refer to defendant's Fifth Amendment right to remain silent nor even subtly implicate that right. Defense counsel did not object to these questions during the prosecutor's summation, and we find no merit in this point.
Defendant's assertion that the trial court erred in instructing the jury regarding flight also lacks merit. Mere departure from the scene of a committed crime does not infer guilt. State v. Sullivan, 43 N.J. 209, 238 (1964), cert. denied, 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed. 2d 477 (1966). However, departure from a crime scene takes on "the legal significance of flight" when there are "circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." Id. at 238-39. If there is no apparent explanation for the flight, "the jury may infer from the flight consciousness of guilt on the part of the defendant." State v. Leak, 128 N.J. Super. 212, 216 (App. Div.), certif. denied, 65 N.J. 565 (1974).
During the jury charge conference, the prosecutor requested a flight charge based on the victim's testimony that defendant and co-defendant turned and ran when the victim yelled for the police and dialed 911. Defense counsel opposed the request and argued that this case involved mere departure, not flight. In granting the prosecutor's request for the flight charge, the trial judge reasoned that the jury could fairly conclude, based upon the evidence, that defendant and co-defendant ran to avoid apprehension. During the charge, the trial judge gave the jury instructions on flight identical to the Model Jury Charge.
Defendant maintains that he and the co-defendant did not have the intent to leave the scene to avoid apprehension because "they could not possibly have believed anyone from law enforcement was in the area." That was an issue bearing upon credibility, which was within the province of the jury. On the other hand, the trial court did not err by instructing the jury of the flight charge.
Defendant next contends that his acquittal for possession of a weapon for unlawful purposes under N.J.S.A. 2C:39-4d is inconsistent with the armed robbery conviction under N.J.S.A. 2C:15-1. It is well-settled that our law does not require consistency in jury verdicts. United States v. Powell, 469 U.S. 57, 62, 105 S.Ct. 471, 475, 83 L.Ed. 2d 461, 467 (1984); Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 358 (1932); State v. Banko, 182 N.J. 44, 53 (2004); State v. Peterson, 181 N.J. Super. 261, 267 (App. Div. 1981), certif. denied, 89 N.J. 413 (1982). A jury may render inconsistent verdicts provided a sufficient evidentiary basis exists in the record to support the charge on which the defendant is convicted. Banko, supra, 182 N.J. at 54-55. The court may review a verdict only where "'an acquittal on one count precludes the finding of one or more elements of an offense charged in a second count as a matter of law.'" State v. Ortiz, 253 N.J. Super. 239, 245 (App. Div. 1992) (quoting Peterson, supra, 181 N.J. Super. at 266).
A jury verdict finding an accused not guilty of possession of a weapon for unlawful purposes, under N.J.S.A. 2C:39-4, does not preclude a guilty verdict for armed robbery. State v. Harmon, 104 N.J. 189, 204-05 (1986). The statute outlining the elements of possession of a weapon for unlawful purposes enunciates a specific state of mind requirement. Id. at 205. Although an accused must have used or possessed a weapon in an armed robbery offense, he may not have possessed the weapon with the intention of using it to commit a crime. Ibid.; see also State v. Mieles, 199 N.J. Super. 29, 40-41 (App. Div.), certif. denied, 101 N.J. 265 (1985) (finding accused not guilty under N.J.S.A. 2C:39-4a, possession of a weapon for an unlawful purpose, does not preclude a guilty verdict for first degree armed robbery).
Based on the evidence here, a jury could reasonably find defendant guilty of armed robbery but not have the requisite intent for, and thus not guilty of, possession of a weapon for an unlawful purpose. As such, the acquittals on counts two and three provide no basis for relief of defendant's armed robbery conviction.
Lastly, defendant argues that his court-imposed sentence was manifestly excessive. Defendant was sentenced to a term of fifteen years with an eighty-five percent period of parole ineligibility, pursuant to NERA, to be served consecutively with his federal prison term. Defendant argues that, when considering the sentence, the court erred both in applying certain aggravating factors and in omitting certain mitigating factors under N.J.S.A. 2C:44-1. In addition, defendant suggests that various circumstances warrant a concurrent term with his federal term.
A trial court's discretion in imposing a sentence is afforded great deference. State v. Dalziel, 182 N.J. 494, 501 (2005). The appellate court may review a sentence to determine
(1) whether the sentencing court followed the correct sentencing guidelines or presumptions; (2) whether the record contained competent credible evidence to support the aggravating and mitigating factors found below; and (3) whether, the sentence, despite being made in accordance with the guidelines, is "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
Defendant was found guilty of first degree robbery, under N.J.S.A. 2C:15-1, which carries a prison term between ten and twenty years pursuant to N.J.S.A. 2C:43-6a(1). In determining defendant's sentence, the judge found aggravating factors three, six, nine and eleven: factor three is the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); factor six is defendant's prior criminal history, N.J.S.A. 2C:44-1(a)(6); factor nine is the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9); and factor eleven is the imposition of a monetary penalty or sentence other than incarceration would be seen by defendant as a cost of doing business, N.J.S.A. 2C:44-1(a)(11). Although he was sympathetic to defendant's age, the judge did not cite any mitigating factors in the judgment. After consideration of the factors, the judge imposed a fifteen-year prison term to run consecutively with the federal prison term defendant was serving at the time.
The State acknowledges that factor eleven is "inapplicable unless the judge is balancing a non-custodial term against a prison sentence." See Dalziel, supra, 182 N.J. at 502. Nevertheless, this concession by the State does not warrant a remand for resentencing. The trial court found no mitigating factors and validly found the presence of numerous aggravating factors. Defendant's sentence, as arrived at by the trial court, is at the midpoint of the statutory range. N.J.S.A. 2C:43-6a(1). Overall, we find no mistaken exercise of the trial court's discretion, and the sentence imposed does not shock the judicial conscience. See Roth, supra, 95 N.J. at 365.