May 2, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MIGUEL RODRIGUEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-11-1454.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 14, 2008
Before Judges Parrillo and S.L. Reisner.
Following a jury trial, defendant Miguel Rodriguez was convicted of third-degree burglary, N.J.S.A. 2C:18-2, and acquitted of fourth-degree resisting arrest, N.J.S.A. 2C:29- 2(a)(2). He was sentenced to a five-year term subject to a two-year parole bar. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, sometime during the afternoon of September 7, 2005, defendant rang the doorbell of 25 Louis Street, New Brunswick, inquiring about renting the first floor apartment. Adelina Bedoya, who lived on the second floor with her husband, her sister Augustina and her husband, and their children, answered the door and informed defendant, who was wearing a red shirt, that the downstairs apartment was already rented, although the tenants "were not there." Defendant thanked her and left. Adelina actually remembered seeing defendant twice before when he came to the door asking about the first-floor apartment for which a "for-rent" sign had been posted on the front lawn.
Defendant, however, never left the premises on September 7. Rather, he entered the downstairs apartment either through a window or an unlocked basement door. When the sisters did not see defendant leave, they went to the backyard to inspect the premises, whereupon they both noticed defendant in the bathroom of the first-floor apartment, wiping the wood on the bathroom window with a rag. The sisters returned upstairs and phoned Augustina's husband at work, who then called the police.
From their apartment window, the sisters saw defendant leave the building and cross the backyard. Within minutes, several police officers arrived. The first one on the scene, New Brunswick patrolman Anthony Barber, saw defendant run through the backyard of 25 Louis Street, and jump from an elevated structure into the neighbor's backyard. Defendant was apprehended by another officer only three houses away, with his hand on a back door handle at 250 Somerset Street. Defendant froze when the officer ordered him to stop. Subsequently, the first-floor tenant advised that nothing had been taken from her apartment and that while some clothing was on the floor, upon inspection the police had not noticed any disarray. Based on this evidence, the jury found defendant guilty of third-degree burglary.
On appeal, defendant raises the following issues:
I. THE RULING BARRING DEFENDANT FROM INTRODUCING A CERTIFIED COPY OF HIS DEPARTMENT OF MOTOR VEHICLES ABSTRACT, WHICH WOULD HAVE ALLOWED HIM TO ARGUE THAT RATHER THAN FLEEING BECAUSE HE HAD JUST COMMITTED BURGLARY HE FLED TO AVOID ARREST ON WARRANTS ISSUED FOR FAILURE TO APPEAR ON MOTOR-VEHICLE OFFENSES, VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND TO PRESENT A DEFENSE.
II. THE INSTRUCTION ON DEFENDANT'S DECISION NOT TO TESTIFY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below).
III. THE SENTENCE OF FIVE YEARS, TWO YEARS WITHOUT PAROLE, IS GROSSLY EXCESSIVE FOR THIS DEFENDANT AND THIS OFFENSE.
We find these arguments to be without merit. R. 2:11-3(e)(2).
Defendant first claims error in the court's refusal to allow evidence of four outstanding motor vehicle warrants at the time he fled the police to rebut the inference of consciousness of guilt from fleeing to avoid apprehension on the burglary charge; in other words, to permit the jury to consider an alternative reason for defendant's attempt to evade the police officers. We perceive no error in this ruling. Significantly, a critical link in establishing the relevancy of such a proffer was missing here, namely proof of defendant's knowledge of the outstanding warrants. On this score, the fact that defendant may have known of missed court dates does not establish the additional fact that bench warrants were issued thereafter, much less that defendant knew this to be a fact. To ask the jury to draw that inference here would be sheer speculation and therefore evidence of the motor vehicle abstract was properly excluded as lacking the requisite probative value. But even assuming some relevance, its exclusion was nevertheless harmless error given the overwhelming proof of defendant's guilt in the nature of two eyewitness accounts.
Defendant next argues as plain error the court's instruction on his election not to testify because of the inclusion of the word "even" in the phrase "he is presumed innocent even if he chooses not to testify." According to defendant, use of the word "even" conveys the impermissible message that defendant "should have" testified. We disagree. The court's instruction on defendant's election not to testify was essentially identical to the Model Jury Charge and no objection was voiced below. In that instruction, the jury was clearly and plainly advised that they were not to consider defendant's election not to testify "for any purpose or in any manner." We presume the jury followed this instruction, State v. Burns, 192 N.J. 312, 335 (2007), and no error, much less plain error, was committed here.
Lastly, defendant argues the imposition of a discretionary two-year parole bar is unduly excessive. Again we disagree. The judge was clearly convinced of the substantial weight of applicable aggravating factors, including most notably defendant's extensive criminal record of burglaries and other theft-related offenses dating from adolescence, and some occurring only months after his parole from service of his last juvenile incarceration. N.J.S.A. 2C:44-1(a)(6). By the same token, the court found no mitigating factors, rejecting defendant's argument that his emotionally disturbed mental state as a teenager tended to excuse his conduct more than a decade later. Simply put, there is no warrant for our interference with this sentence.
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