January 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VICTOR PENZO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0477.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2008
Before Judges Sabatino and Simonelli.
As the result of a jury verdict, defendant Victor Penzo was convicted in June 2006 of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). His conviction arose out of the fatal stabbing of a street gang member, Remy DeLeon, in Union City. The court sentenced defendant to a twenty-year prison term.
Defendant now appeals, specifically contending that: (1) the trial court should have granted his motion for a new trial because of certain comments by the prosecutor in summation; (2) the verdict was against the weight of the evidence; and (3) his sentence was excessive. We reject each of these contentions and affirm.
The State's proofs at trial established the following relevant events and circumstances. Defendant had been a member of a street gang in Union City known as Dominicans Don't Play ("D.D.P."). In or about 2002, defendant left the gang and began cooperating with the State Police to help them infiltrate the D.D.P. DeLeon, meanwhile, was a member of the juvenile version of the D.D.P., Dominicans Taking Control ("D.T.C.").*fn1
When it became known that defendant had left the D.D.P. and may have been working as an informant, he was beaten up by DeLeon and other gang members. The State Police subsequently admitted defendant and his family into the witness protection program, and, for a period of time, they relocated to Connecticut. Eventually, defendant violated the terms of his cooperation with the State Police by coming back to New Jersey and as a result, was terminated from the program.
The melee that led to DeLeon's death occurred on December 13, 2004, near Emerson High School. That day several eyewitnesses saw defendant and defendant's cousin, Luis Mojica, attack DeLeon and his teenage friend, Juan Peralta. DeLeon was looking after his two-and-a-half-year-old nephew at the time.
A few blocks from the high school, defendant made a u-turn in his car. He drove towards DeLeon, who was walking down the street with his nephew by a grocery store. Peralta was a few paces in front of DeLeon. Defendant was accompanied in his car by Mojica and another young man, Noberto Rosario.
Defendant, who was wearing a black jacket, got out of his car. He advanced towards the pedestrians, pulling out a knife from his jacket pocket. Mojica also got out of the car. Mojica began attacking Peralta with a knife or a sword, slicing Peralta's nose. Meanwhile, defendant went after DeLeon. As DeLeon back-pedaled, defendant stabbed him in the chest. Defendant and Mojica then jumped back into the car and drove away.
The stab wound punctured DeLeon's heart. He died shortly thereafter. Peralta survived, sustaining a large cut on his face that extended over to the bridge of his nose.
An eyewitness to the attack called in defendant's license plate. Police spotted the car and pulled it over. They arrested defendant and Mojica. The knife used to stab DeLeon was not recovered. Two other knives were recovered from the scene, but neither had been used against DeLeon.
Defendant gave a statement to the police, contending that DeLeon and Peralta had been the aggressors in the encounter. Defendant claimed that he only had been defending himself with a knife that he had been able to wrest away from Peralta.
Defendant was indicted and charged with the murder of DeLeon. He was also charged with acting as an accomplice to the aggravated assault of Peralta, and with several weapons crimes.
At trial, the State presented testimony from several witnesses: Peralta; the chief medical examiner; a physician who treated Peralta; and police officers involved in the homicide investigation. The State also presented defendant's statements to the police. Defendant took the stand in his own defense and also called Rosario.
The jury acquitted defendant of murder but found him guilty of the lesser-included offense of aggravated manslaughter. He was acquitted of the remaining counts in the indictment.
The trial judge sentenced defendant to twenty years, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
We first address defendant's claim, which he has amplified with a pro se supplemental brief, that he should have been granted a mistrial because the prosecutor, in his summation, suggested to the jury that defendant had disposed of his black jacket and the knife used to stab DeLeon. Defendant's trial counsel did not object to these comments contemporaneously. However, after the jury verdict was returned, defendant moved for a new trial, representing that defendant's mother had turned over his jacket to the police after the co-defendant Mojica had been released from jail.
Defendant claimed that the State should have known that the jacket had been recovered, and that the prosecutor's suggestion to the jury that defendant had disposed of the jacket to avoid criminal detection was false and unfair.
The trial judge denied the motion. The judge determined that the production of the jacket would not have changed the outcome of the trial "one iota," because the jacket had little to do with whether or not a knife had been discarded after defendant fled the scene.
Because defense counsel did not promptly object to the prosecutor's closing argument but instead waited until the verdict had already been rendered before seeking relief, we are guided by a plain error standard of review. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971).
In evaluating whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). The State's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993). The Supreme Court has recognized that criminal trials often create a "'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958)).
Here, we are satisfied that the prosecutor's comments in summation about the jacket were within the bounds of permissible commentary. The prosecutor's statements were reasonably consistent with the proofs that had been adduced at trial, which did not include the mother's post-trial assertions about what had happened to the jacket. The prosecutor's comments also fairly responded to defense counsel's summation emphasizing that neither of the knives recovered from the scene were used to stab DeLeon. The prosecutor was simply offering an alternative theory, suggesting that defendant had wrapped the knife inside the jacket and had taken them away from the crime scene. That argument was a reasonable inference, although, as the trial judge noted, it was not an inference essential to the State's case. On the whole, we discern no error, much less plain error, from the prosecutor's comments.
Defendant next argues that the verdict was against the weight of the evidence. That argument is equally without merit. An order for a judgment of acquittal is to issue only "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The standard to be applied to determining a motion for a judgment of acquittal at the conclusion of the State's case is set forth in State v. Reyes, 50 N.J. 454, 458-59 (1967):
[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, 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.
Under R. 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Papasavvas, 170 N.J. 462, 521 (2002) (internal quotations omitted). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).
The standard for deciding a R. 3:18-2 motion for judgment of acquittal n.o.v. is the same as that used to decide a motion for acquittal made at the end of the State's case. State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004). On appeal, we apply the same standard. State v. Kittrel, 145 N.J. 112, 130 (1996).
Having considered the trial proofs in their entirety, we are satisfied that they were more than sufficient to establish that defendant had committed aggravated manslaughter, by recklessly causing DeLeon's death "under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). Multiple eyewitnesses observed defendant attack DeLeon. The two young men had a history of violence with one another, and defendant had a motive to retaliate against DeLeon for his prior beating. The stab wound to DeLeon's abdomen was five inches deep, consistent with an extreme indifference to his survival. The jury obviously found incredible defendant's testimony that he had not deliberately stabbed DeLeon and that he had only been trying to protect himself. In sum, the verdict was not against the weight of the evidence.
Lastly, we briefly consider defendant's third and final argument, which challenges his sentence as excessive. In imposing the twenty-year term, the trial judge invoked aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); six, N.J.S.A. 2C:44-1(a)(6) (defendant's prior criminal record); and nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter defendant and others). The judge found no mitigating factors.
Defendant emphasizes on appeal that his criminal record otherwise consists of only a fourth-degree conviction for possession of a weapon under manifestly inappropriate circumstances. Even so, there is ample justification for the sentence that was imposed in this case. Defendant chose to re-involve himself with street gangs after the State had already given him a chance to leave New Jersey and establish a new life. His resumed contact with such violent actors led him to stab and kill DeLeon, another gang member. The sentencing judge rightly took this background into account. The sentence was not manifestly excessive. State v. Roth, 95 N.J. 334, 363-64 (1984).