December 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALEXIS GONZALEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 02-08-1086.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2008
Before Judges Lisa and Alvarez.
The jury found defendant guilty on eight of the nine counts in the indictment against him as follows: (1) first-degree carjacking, N.J.S.A. 2C:15-2a(2); (2) second-degree robbery, N.J.S.A. 2C:15-1a(2); (3) second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); (4) fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(5); (5) disorderly persons resisting arrest, N.J.S.A. 2C:29-2a; (7) third-degree theft, N.J.S.A. 2C:20-3a; (8) third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3a; and (9) fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(1). The jury acquitted defendant of count six, second-degree eluding, N.J.S.A. 2C:29-2b.
The judge merged count two with count one and sentenced defendant on count one to fifteen years imprisonment with an 85% parole disqualifier and five years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed sentences on counts three, four and five concurrent to count one as follows: on count three, ten years imprisonment with an 85% NERA parole disqualifier and three years parole supervision; on count four, eighteen months imprisonment; and on count five, 180 days in the county jail. After merging count eight with count seven, the judge sentenced defendant on count seven to five years imprisonment, consecutive to count one. Finally, on count nine, the sentence was eighteen months imprisonment, concurrent to count one.
On appeal, defendant argues:
THE TRIAL COURT ERRED BY FAILING TO APPROPRIATELY INSTRUCT THE JURY REGARDING THE LIMITED ADMISSIBILITY OF A CO-DEFENDANT'S GUILTY PLEA. (NOT RAISED BELOW).
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED FROM A POLICE OFFICER WHICH EFFECTIVELY INFORMED THE JURY THE DEFENDANT HAD MADE INCRIMINATING REMARKS TO HIM. (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
THE DEFENDANT IS ENTITLED TO A REMAND FOR A RECONSIDERATION OF SENTENCE REGARDING COUNTS III, IV, VII AND IX PURSUANT TO STATE V. NATALE.
The State concedes, and we agree with defendant's argument in Point IV. We reject defendant's remaining arguments and in all other respects affirm.
In March 2002, William Keely purchased a Honda Prelude for his son, Matthew Douglass, who lived with the family in Pequannock. The dealership normally gives purchasers three keys to a car, but in this case, the purchasers received only two. Defendant and his cohort, Isael Cosme, somehow came into possession of the third key, known as a valet key, and they determined to steal the car.
At about 11:00 p.m. on May 14, 2002, the car was parked in the driveway. Using the valet key, defendant and Cosme entered the car and attempted to start it. In doing so, they set off the car alarm. This alerted Douglass, who saw the activity from his window. He ran outside and attempted to stop the two men, but they were able to start the car and drove away in it. Douglass immediately called 911.
Pequannock police officer Rick Vanderclock, who was on patrol, responded to the area and sighted the Prelude, which was traveling at a high rate of speed. He pursued the vehicle, activating his overhead lights and siren. The Prelude reached speeds in excess of 100 miles per hour and apparently incurred some damage to its wheels when it became airborne after hitting a dip in the road. The Prelude eventually slowed down, and its two occupants jumped out while it was still rolling.
Vanderclock gave chase on foot and apprehended Cosme. A Lincoln Park police officer, John Rondanini, who was in uniform and had joined in the pursuit in a marked patrol car, saw defendant near the rear of the Prelude and ordered him to freeze, drawing his weapon. Defendant disregarded his order and ran toward Route 23, with Rondanini running behind him. Defendant flagged down a pick-up truck driven by David Duda and jumped in the passenger seat. Defendant instructed Duda to "drive or I'll fucking shoot you." Duda jumped out of the pickup truck and ran for safety. Rondanini directed defendant to get out of the truck. Instead, defendant drove the truck towards Rondanini, who was able to step aside and avoid being hit. Rondanini fired two shots, striking two tires of the truck. Defendant nevertheless continued to drive the disabled truck a distance and out of Rondanini's sight.
At about 11:15 p.m., Wayne police officer John McNiff responded to a location that was about one mile from where the Prelude had earlier been abandoned by defendant and Cosme. McNiff had gone to this area in response to a radio transmission that a possibly armed suspect was on foot in the area and hiding in a dump truck on a commercial property. The location was about 100 yards from the location of the abandoned pick-up truck. When McNiff looked in the bed of the dump truck, defendant was there. McNiff, who was in uniform, told defendant he was under arrest and directed him to get out of the dump truck. Defendant refused and physically resisted McNiff and other officers when they took him into custody.
The police immediately took defendant to a nearby location for a show up identification by Duda, who identified defendant as the man who entered his pick-up truck and threatened to shoot him.
Police examination of the Prelude revealed no damage to the locks or steering column that would typically be associated with a theft. These items were intact. The valet key was in the ignition. Fingerprint analysis of the Prelude revealed several latent prints. One print on the outside of the driver's side window matched defendant.
Cosme, who was involved only in the theft aspect of this criminal episode, pled guilty pursuant to a plea agreement, by which he would receive a probationary sentence and which obligated him to testify truthfully against defendant.
Cosme testified at trial. His plea agreement was entered into evidence. He denied lying to the jury in order to obtain a better outcome for himself. He said he accompanied defendant to the Douglass household, observed defendant start the Prelude, and rode with defendant as defendant drove the Prelude away from police pursuit, after which he saw defendant running from the Prelude. Duda also testified and described the events, identifying defendant as the perpetrator. The jury also heard testimony of the pursuing police officers and were presented with exhibits comparing fingerprints taken from the Prelude and defendant's fingerprints.
For the first time on appeal, defendant alleges two trial errors. First, he argues that the failure of the trial judge to instruct the jury that it could not use Cosme's guilty plea as substantive evidence of defendant's guilt, as required by State v. Stefanelli, 78 N.J. 418, 434 (1979), was reversible error. Defendant did not request such an instruction at trial, nor did he object to the instructions that the judge gave the jury. We are therefore guided by the plain error standard, and we will not reverse unless the asserted error is "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice, but the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). With respect to a jury instruction, plain error is: legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result. [State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970).]
The omitted instruction should have been given. However, in the overall context of this trial, we find that the failure to give it was harmless error. The entire episode lasted only about fifteen minutes, and defendant was apprehended at the scene. He was immediately identified by Duda. His fingerprint was found on the Prelude. Evidence of his guilt was overwhelming. Further, Cosme testified at the trial and was subject to rigorous cross-examination. In closing argument, defendant's attorney emphasized the need for the jury to evaluate the biases, prejudices and reasons for each witness's testimony. She argued that Cosme was not a credible witness because he benefited from lesser charges and a lesser sentence in exchange for his testimony. The judge instructed the jurors that in evaluating the credibility of witnesses and the weight to be attached to the testimony of each witness, they should consider, among other things, "the witness['s] interest in the outcome of the trial, if any, including any benefits he may expect in exchange for his testimony including the promise of a recommendation for a more lenient sentence."
Further, Cosme's testimony inculpating defendant pertained only to the first portion of the events dealing with the theft of the Prelude and eluding the police. Notably, the jury acquitted defendant of eluding. The only evidence supporting the State's contention that defendant was the driver of the Prelude came from Cosme. The jury apparently was not convinced beyond a reasonable doubt based on that testimony, and acquitted defendant of the eluding charge. This is a strong indication that the jury considered Cosme's testimony in conjunction with all of the other evidence in the case, and did not accept Cosme's testimony at face value. It is also a strong indication that Cosme's guilty plea to the first series of events, which included the eluding, did not induce the jury to find defendant guilty of all aspects of those events. In other words, the jury considered all of the evidence independently, and was not influenced by the fact that Cosme pled guilty.
The failure to give this instruction is subject to harmless error analysis. Stefanelli, supra, 78 N.J. at 435-37; State v. Adams, 194 N.J. 186, 206-09 (2006). In the context of this case, we are satisfied that Cosme's guilty plea had little or no significance in the jury's analysis, and the absence of the Stefanelli limiting instruction does not raise a reasonable doubt in our minds as to whether the error led the jury to a result it otherwise might not have reached. The absence of this instruction was harmless, and does not warrant reversal.
Defendant's second alleged trial error pertains to a comment made by Detective Fairweather of the Pequannock Police Department that he linked defendant to the stolen car investigation "[b]ased on his arrest in Wayne Township, and plus an interview with him." (emphasis added.) This testimony came on redirect examination. Fairweather was involved in the investigation of the theft of the Prelude by use of the valet key which was apparently obtained from the car dealership. That investigation was ongoing at the time of trial. On cross-examination, Fairweather conceded that defendant's name was not one of the names divulged as a potential source of the key. Thus, on redirect examination, the prosecutor asked Fairweather, "How did you link Mr. Gonzalez to the stolen car you were investigating on the night of May 14?" He responded as we have indicated.
The prosecutor did not anticipate that the response would include reference to defendant's "interview," and the prosecutor immediately changed the subject. When Fairweather's testimony concluded, the prosecutor advised the judge, out of the jury's presence, of the unexpected nature of the response and offered to ask Fairweather directly if defendant expressed a willingness to talk about the stolen car. Apparently, based upon the discovery, defendant was willing to waive his Miranda*fn1 rights and talk to the police regarding the theft of the Prelude, but he was not willing to do so with respect to the carjacking and related events. Defense counsel declined the offer, acknowledging that the unsolicited response by Fairweather was unexpected. Defense counsel also declined the offer that any curative instruction be given, agreeing that calling attention to it would be worse than saying nothing, and that "it's better if we just leave it at that." No mistrial motion was made.
Defendant now argues that once the jury heard of defendant's interview as linking him to the stolen car investigation, "it undoubtedly concluded the defendant was criminally culpable of all charges arising on the day in question . . . . [T]he prejudicial effects arising from such testimony could not possibly have been dissipated by any curative instruction, even had one been requested . . . ."
We find this argument unpersuasive. The comment was fleeting, and the term "interview" is subject to various interpretations. The prosecutor made no further mention of this in summation or at any other time during the trial. Defense counsel made a strategic decision to decline any further explanatory testimony or a curative instruction, and did not move for a mistrial, instead agreeing that it was better off left alone. This indicates that defense counsel perceived no significant prejudice. We find no mistaken exercise of discretion by the court in failing to take a curative action sua sponte and over defense counsel's objections. We are also convinced that this isolated comment, in the overall context of this case, did not have the clear capacity to produce an unjust result and lead the jury to a result it otherwise might not have reached. Any error was harmless and does not warrant reversal.
Finally, we address defendant's sentencing arguments. Sentence was imposed on May 16, 2003, prior to the Supreme Court's 2005 decision in State v. Natale, 184 N.J. 458, 488 (2005).*fn2 We therefore remand for reconsideration of sentence on counts three, four, seven and nine, on which sentences higher than the then presumptive sentences statutorily prescribed for those offenses were imposed.
There is no need for a like remand on count one, an enhanced first-degree crime with a sentencing range of ten to thirty years, N.J.S.A. 2C:15-2b, and for which defendant was sentenced to fifteen years, well below the midpoint. We reject defendant's argument that his sentence on count one was excessive. In imposing sentence on that count, the judge carefully considered the relevant evidence and correctly applied the principles prescribed by State v. Zadoyan, 290 N.J. Super. 280, 291-92 (App. Div. 1996). Further, we reject defendant's reliance on State v. Berardi, 369 N.J. Super. 445, 453-55 (App. Div. 2004), certif. granted, 183 N.J. 213 (2005), appeal dismissed per stipulation, 185 N.J. 250 (2005). The determination in this case is not inconsistent with Berardi. And, from our review of the record, we are satisfied that the judge's findings regarding aggravating and mitigating factors were based on competent and credible evidence, that the judge did not apply incorrectly the sentencing guidelines in the Code of Criminal Justice, and that the sentence imposed on count one was not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
Defendant also argues that the judge erred in imposing consecutive sentences for the theft and carjacking offenses. Although the theft and carjacking incidents were part of an ongoing criminal episode, the judge viewed the two events as "conceptually . . . two discrete situations," the first of which came to a conclusion when defendant abandoned the Prelude and ran off toward Route 23. The judge noted that the two events involved separate circumstances and separate victims. The judge's findings in this regard are well supported by the record, and we are satisfied that in deciding upon consecutive sentences the judge correctly applied the guidelines prescribed by State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), as amended by N.J.S.A. 2C:44-5a (L. 1993, c. 223, § 1).
Defendant's convictions on all counts are affirmed. The sentence on count one is affirmed. The imposition of consecutive sentences is affirmed. The sentences imposed on counts three, four, seven and nine are remanded for reconsideration under Natale, supra.
Affirmed in part; remanded in part.