June 17, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALFREDO SUAREZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-01-0143.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges A. A. Rodríguez and C. L. Miniman.
Following a jury trial, at which Judge Kevin J. Callahan presided, defendant Alfredo Suarez was convicted of third-degree receiving stolen property (an automobile), in violation of N.J.S.A. 2C:20-7. Defendant was sentenced to a five-year term. We affirm the conviction, but vacate and remand the sentence.
Four witnesses testified for the State. Dr. Dmitriy Romanenko, a resident physician at Jersey City Medical Center, arrived at the hospital around 3:30 or 4:00 p.m. on March 27, 2004. He parked his wife's Infiniti I-30 at an adjacent parking facility and handed the keys to a parking attendant. At around 10:00 a.m. the next morning, Dr. Romanenko noticed that the Infiniti was missing, along with a laptop computer, camera, and other personal items that had been inside the vehicle.
David Salerno, manager of the parking facility, testified that defendant used to work at the facility sometime before the incident. Felix Colon was the only employee working at the facility on the day in question. Colon testified that on March 27, defendant appeared at the facility sometime between 2:00 and 4:00 p.m., "coming down towards the booth a little bit towards where I worked at." According to Colon, when he returned from retrieving a customer's car, defendant was gone and the door to the parking booth was open. Colon testified without objection that he noticed that his money, which he kept in the booth, "was gone actually." Colon saw defendant walking fast toward the hospital's emergency room entrance. "He was gone quick, Colon said." Colon then called 911.
Hoboken Police Officer Robert Trumpner was at a construction site in Hoboken the next morning at around 7:30 a.m. He heard a car's engine rev. As he turned, he "saw a vehicle approaching the corner." Trumpner saw that it was an Infiniti. The officer "looked inside the vehicle [and] saw [defendant] driving it." Trumpner knew defendant, who used to live in an apartment building owned by Trumpner's mother. The officer waved to defendant. Defendant did not wave back, but "took off" down the street. Another officer attempted to stop defendant, but was unsuccessful. Trumpner recorded the moving car's license plate number. Hoboken police dispatchers confirmed the car was an Infiniti registered to Dr. Romanenko's wife.
Defendant asked the judge to charge the jury on "cross-racial identification," asserting that Trumpner and defendant were of different races. Judge Callahan denied a cross-racial instruction, noting that Trumpner was a police officer and he knew defendant.
Defendant did not testify. He presented no witnesses.
On the second day of deliberations, the jury sent out a note asking, "Are we allowed to discuss why the arresting officer or the investigating officer did not testify?" The jury also asked a question about "reasonable doubt." Judge Callahan answered the jury as follows:
You are allowed to discuss anything within the testimony that supports or discredits, corroborates or doesn't corroborate the testimony of any witness. * * * But you cannot draw a negative inference that someone - - one of these officers who [did not] testify would have said something that was negative or not supported or contradicted of the -- you can't speculate on what the testimony would have been, alright? . . . you can't simply say because somebody didn't testify you draw a negative inference as to what they would have said, would have not been corroborative or favorable. But we can also say the opposite saying it would have been favorable or corroborative.
In responding to the jury's reasonable doubt question, the judge reinstructed the jury on reasonable doubt.
Shortly after receiving these instructions, the jury returned its verdict, finding defendant guilty of driving the Infiniti knowing it had been stolen, but not guilty of theft of Dr. Romanenko's personal property inside the Infiniti.
On appeal, defendant first contends:
PERMITTING THE JURY TO HEAR THAT DEFENDANT MIGHT HAVE STOLEN MONEY FROM THE PARKING LOT BOOTH-A CRIME WITH WHICH DEFENDANT HAD NOT BEEN CHARGED-DEPRIVED DEFENDANT OF A FAIR TRIAL ON THE CHARGES AGAINST HIM (Plain Error).
We disagree. Although evidence of "other crimes, wrongs, or acts" is not generally admissible to prove the defendant's disposition to commit the crime that has been charged, N.J.R.E. 404(b), there are exceptions. One of these is when "the evidence with respect to defendant's conduct . . . [is] part of the total criminal event on the same occasion . . . [and therefore] part of the res gestae of the crimes." State v. Sease, 138 N.J. Super. 80, 85 (App. Div. 1975). See also State v. Martini, 131 N.J. 176, 242 (1989) (holding that "other crimes" evidence relates directly to the crime for which the defendant is on trial if it "serves to paint a complete picture of the relevant criminal transaction" and furnishes context to it). Res gestae evidence is admissible with appropriate limiting jury instructions. State v. Pitts, 116 N.J. 580, 603 (1989).
Moreover, we note that there was no objection to the testimony, which defense counsel addressed on cross-examination; and there was no request for a limiting instruction. We conclude that, on a plain error analysis, the admission of Colon's testimony was not "capable of producing an unjust result[.]" R. 2:10-2.
Defendant also contends:
THE TRIAL COURT'S IDENTIFICATION CHARGE WAS ERRONEOUS AND PREJUDICIAL BECAUSE THE COURT DID NOT FOLLOW THE MODEL CHARGE AND OMITTED THE CROSS-RACIAL CHARGE THAT DEFENSE COUNSEL REQUESTED.
We disagree. The cross-racial identification is not applicable here. In State v. Cromedy, 158 N.J. 112 (1999), the Supreme Court held that:
A cross-racial instruction should be given only when . . . identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability. [Id. at 132.]
Here, Trumpner was a professional eyewitness. Moreover, this was not a stranger-to-stranger identification. The officer knew defendant.
Defendant also contends:
THE TRIAL COURT'S SUPPLEMENTAL INSTRUCTION TO THE JURY, IN RESPONSE TO THEIR QUESTIONS ABOUT REASONABLE DOUBT AND TESTIMONY THE STATE FAILED TO PRESENT, WAS IMPROPER AND PREJUDICED DEFENDANT'S RIGHT TO A FAIR JURY TRIAL AND VERDICT BASED ON PROOF BEYOND A REASONABLE DOUBT (Plain Error).
We find this argument without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We merely note that the supplemental charge was appropriate and according to law. The judge "was not required to relate the reasonable doubt question to the non-testifying officers question. The judge was only required to inform the jury of the recognized problems of eyewitness identification testimony by giving the standard identification instruction[.]" State v. Walker, 322 N.J. Super. 535, 552-53 (App. Div.), certif. denied, 162 N.J. 487 (1999).
Defendant also contends that his sentence is "illegal and excessive." We disagree. Defendant was twenty-three years old at the time of the offense. He has a history of one indictable and two disorderly persons convictions.
The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3) the risk that defendant will commit another offense; (6) the extent and seriousness of defendant's prior criminal record; and (9) the need for specific and general deterrence from violating the law. The judge also found as a mitigating factor that defendant had expressed "some remorse." The judge found that the aggravating factors substantially outweighed the mitigating factor and imposed a five-year term.
From our careful review of the record, we conclude that the sentence must be vacated and remanded for resentencing pursuant to the mandate of State v. Natale, 184 N.J. 458 (2005) (Natale II). The State concedes that the sentence must be remanded. Upon remand, the judge may impose any sentence within the sentencing range for the crime charged, e.g., three to five years for a third-degree offense. N.J.S.A. 2C:43-6(a)(3).
The conviction is affirmed. The sentence is vacated and the matter is remanded for resentencing.
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