August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PAUL RODGERS, A/K/A ROLANDO BETANCOURT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1322.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 22, 2009
Before Judges Yannotti and Lyons.
Defendant, Paul Rodgers, appeals his conviction, after trial by jury, on the first and third counts of a three-count indictment that charged him with: third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(5)(a) (count one); second-degree disarming of a law enforcement officer, contrary to N.J.S.A. 2C:12-11(a) (count two); and second-degree attempted escape, contrary to N.J.S.A. 2C:29-5(a) (count three). Defendant was acquitted of the second-degree disarming of a law enforcement officer count. We affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On June 5, 2007, defendant arrived at the Hudson County Administration building in Jersey City. He was in the custody of the Hudson County Sheriff's Office for a court appearance on an unrelated criminal charge. Once he entered the administration building, he was placed in a receiving area. A sheriff's officer testified at trial that he placed defendant in restraints on that day.
At some point, defendant was escorted by the sheriff's officer from the receiving area to a cell and then the courthouse floor where Officer Michael Diaferia was waiting to bring him to a particular courtroom on that floor. According to the testimony of Officer Diaferia, when defendant arrived on the ninth floor and exited the elevator, he began shouting and cursing. The officer noticed defendant's hands and that the left handcuff appeared to be defaced. Officer Diaferia grabbed a replacement pair of handcuffs and approached defendant. The officer testified that as he did so, the handcuff fell apart and hit the ground. The officer further stated that at that point, defendant grabbed his weapon. Officer Diaferia engaged in a struggle with defendant, during which time the officer and defendant fell to the ground. According to the officer, others arrived, defendant was secured, and both Officer Diaferia and defendant suffered physical injuries which required medical treatment.
Defendant's testimony at trial differed distinctly from Officer Diaferia's. Defendant stated that when he arrived on the floor, several officers were there. While the officers were discussing what to do with defendant, defendant sat down in an area referred to as the "bullpen." Defendant testified that he was then confronted by Officer Diaferia. Defendant testified that matters escalated and he was "roughed up" by Diaferia. A physical scuffle ensued and, according to defendant, the officer hit his head on the corner of the furniture but then stood up and injured defendant's foot.
As a result of this incident, defendant was indicted and charged with third-degree aggravated assault, second-degree disarming of a law enforcement officer, and second-degree attempted escape.
His trial was held before a judge and a jury on January 30, January 31, and February 1, 2008. At the conclusion of the presentation of evidence, the trial judge asked if either counsel had any requests to charge the jury. There were none. The trial judge then proceeded to charge the jury. First of all, he presented the jury with the elements necessary to constitute escape under the law, utilizing the Model Jury Charge, revised June 5, 2006. The judge pointed out that the charge the jury would be presented with was attempted escape, but he noted to the jury that they needed to focus on escape first and then they would "get to attempt."
The trial judge noted that, consistent with N.J.S.A. 2C:29-5(a), the statute that proscribes escape, the State had to prove beyond a reasonable doubt that defendant knowingly removed himself from official detention. The judge then went on to explain what official detention was. After outlining the elements for escape, the judge then turned to the elements of attempt.
The judge utilized the Model Jury Charge for attempt, which was revised March 17, 1997. He used, in particular, "Alternative I," the introduction to the "Main Charge," sub-paragraph "(3) Attempt-Substantial Step," and the closing paragraph of the Model Charge for attempt. The Model Charge given pointed out that attempt requires that the defendant "purposely" did or omitted to do something and that action or omission must constitute a substantial step in the course of conduct planned to culminate in the commission of the crime. The trial judge went on to explain that a substantial step has to be taken by the defendant "purposely" with a "conscious object to engage in conduct that would cause," in this case, escape. The judge then gave a definition of "purposely," as well.
After the jury retired for deliberations, they presented the court with a question. They asked, "what's the definition of attempted escape?" In response, the trial judge reviewed, once again, the elements for escape and the elements for attempt. He particularly pointed out that attempt required purposeful conduct.
In addition to reviewing the Model Jury Charges, the judge provided the jury with some hypothetical examples. In those examples, he again stressed to the jury that they have to look to determine what defendant's purpose was in either taking action or omitting to take action. In particular, he made reference to "the purpose to escape." There were no further questions from the jury. Defendant was acquitted of disarming or attempting to disarm a sheriff's officer, but was convicted of attempted aggravated assault on the sheriff's officer and attempted escape.
When defendant appeared on March 20, 2008, for sentencing, the judge found him eligible for a discretionary extended term as a persistent offender under N.J.S.A. 2C:44-3(a). On the second-degree attempted escape conviction, the trial judge imposed the maximum prison term of twenty years, with ten years to be served without parole eligibility. This sentence is to be served consecutive to a forty-year prison term that defendant was already serving. On the third-degree aggravated assault conviction, the trial judge sentenced defendant to a ten-year prison term, with five years without parole eligibility to run concurrent to the twenty-year prison term for attempted escape.*fn1
In July 2008, defendant filed a notice of appeal.
On appeal, defendant submits the following arguments for our consideration:
THE TRIAL COURT'S CONFUSING JURY INSTRUCTIONS ON THE CHARGE OF ATTEMPTED ESCAPE ALLOWED THE JURORS TO CONVICT MR. RODGERS IF THEY FOUND HE ACTED WITH LESS THAN THE PURPOSEFUL CULPABILITY REQUIRED. U.S. CONST., Amends V, XIV; N.J. Const. (1949) Art. I, ¶ 1. (Not raised below).
A. The trial court's jury charge on attempted escape was fatally flawed because it failed to include a critical portion of the Model Jury Charge on that offense.
B. When, during deliberations, the jurors asked for an explanation of attempted escape, the trial court failed again to give the portion of the Model Charge that clarifies the need to find a purposeful mental state for this offense, even though an actual "escape" requires only a "knowing" state of mind.
THE 20-YEAR EXTENDED PRISON TERM, 10 YEARS WITHOUT PAROLE, WHICH THE TRIAL COURT IMPOSED ON THE CONVICTION OF 2nd DEGREE ATTEMPTED ESCAPE WAS EXCESSIVE.
On appeal, defendant presents two lines of argument. The first is that the trial judge's reference to the "knowing" standard in conjunction with escape was confusing to the jury when defendant was charged with attempted escape and attempt requires "purposeful" conduct. The second line of argument is that the twenty-year extended prison term is excessive.
Turning to the first line of argument, we have outlined in State v. Tierney, 356 N.J. Super. 468, 477-78 (App. Div), certif. denied, 476 N.J. 72 (2003), our standard of review in such situations:
Defendant did not object to the instructions in the trial court, R. 1:7-2, nor did defendant proffer any requests for instructions, R. 1:8-7. Indeed, on several occasions throughout the trial, the judge invited the parties to submit requests to charge, and he furnished the parties with his tentative charges. Defense counsel consistently expressed his approval of the charges as framed by the judge. Accordingly, our review is under the plain error standard, and we will disregard the alleged error unless it is "clearly capable of producing an unjust result." R. 2:10-2. "Under that standard, defendant has the burden of proving that the error was clear and obvious and that it affected [her] substantial rights." State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). The error claimed must be so egregious that it "rais[es] 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).
Where, as here, the claimed error pertains to a portion of the jury charge, the charge must be examined as a whole to "determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). In considering a jury charge, 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 the 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).
Moreover, we recognize that attempt must be purposive. In State v. Robinson, 136 N.J. 476, 485 (1994), our Supreme Court, quoting State v. McCoy, 116 N.J. 293, 304 (1989), made it clear that "one cannot logically attempt to cause a particular result unless causing that result is one's 'conscious object,' the distinguishing feature of the purposeful mental state." (Internal quotations omitted).
Having carefully reviewed the trial judge's charge, we are satisfied that he clearly differentiated between the offense of escape and attempted escape and made it plain that attempt required defendant to act with purpose. The trial judge, in reiterating his charge to the jury members in response to their question, provided clear hypothetical examples which emphasized the need to find purposeful conduct to convict defendant of attempted escape.
Defendant argues that the jury charge constituted plain error because the court did not include in its charge a paragraph set forth as a part of "Alternative II" of the Model Jury Charge for attempt.*fn2 While it may have been beneficial to read the paragraph in Alternative II, when looking at the charge as a whole, we do not find that its omission to be such that it would raise a reasonable doubt as to whether the error led the jury to a result it would not have otherwise reached.
On two occasions, the court outlined for the jury the Model Jury Charge for attempt. We note that the language, which defendant complains was not given, is not mandated by the Model Jury Charge, but is an alternative.
Defendant argues that raising the issue of "knowing" as an element of escape created confusion in the minds of the jury. First of all, there is nothing in the record that indicates that the jury was in any way confused by the reference to the elements of escape. Secondly, even if the language of Alternative II, which defendant now claims should have been given, was given, it too would have clearly made reference to the fact that the crime of escape requires knowing conduct. The two different mental states would still have been before the jury.
Defendant points to four reported cases for the proposition that it is error for a jury charge, in an attempt case, to make reference to both a purposeful and a knowing state of mind. Those cases, however, are distinguishable. In State v. Jackson, 305 N.J. Super. 274, 284-85 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998), the charge on accomplice liability for attempted murder that was given specifically stated that the mental state could be either purposefully or knowingly. That was not the case here. In State v. Rhett, 127 N.J. 3, 5-6 (1992), again the trial court charged that a person could act purposefully or knowingly with respect to being guilty of an attempt. In State v. Sette, 259 N.J. Super. 156, 189 (App. Div.), certif. denied, 130 N.J. 597 (1992), again the trial court stated one may act either "purposefully" or "knowingly" to be convicted of attempt. Lastly, in State v. Moore, 122 N.J. 420, 433 (1991), the charge once again made reference to a person acting "purposefully, knowingly, or recklessly." All of these cases are factually distinguishable from this case and do not lend support to defendant's argument.
Here, we find the trial judge's charge was sufficiently clear so as to advise the jury it must find defendant acted purposely to convict him of attempted escape. The trial judge, in responding to the jury's questions, not only repeated the Model Jury Charge, but gave hypothetical examples to assist the jury members in understanding the need to find purposeful conduct. Defense counsel objected to the hypotheticals only. The use of hypothetical examples, though, is not prohibited. In fact, the Model Jury Charges, on occasion, use them. See State v. Hammond, 338 N.J. Super. 330, 342 (App. Div.), certif. denied, 169 N.J. (2001); State v. Kamienski, 254 N.J. Super. 75, 91-92 (App. Div.), certif. denied, 130 N.J. 18 (1992). Our Supreme Court has noted in State v. Concepcion, 111 N.J. 373, 379 (1988), that while Model Jury Charges are helpful to trial courts, "the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case."
In conclusion, after a review of the evidence presented and the charge given, we are satisfied that the jury understood the significance of the need to find purposeful conduct with respect to the attempted escape charge. The suggestion defendant now makes arguably could have improved the charge by making it more detailed and specific, but that does not render the charge erroneous. In fact, defendant's failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised here was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
We are satisfied then that the charge was not legally erroneous, although it was capable of improvement. State v. Walker, 385 N.J. Super. 388, 404 (App. Div.), certif. denied, 187 N.J. 83 (2006). As we said in Walker, "[w]hen the instruction is sufficiently clear, unambiguous and helpful when viewed as a whole, the verdict will stand, even if the charge was capable of improvement." Ibid.
We now turn to defendant's second argument that his sentence was excessive. Appellate review of a sentencing decision calls for the reviewing court to determine whether the trial court clearly erred "by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors." State v. Roth, 95 N.J. 334, 365-66 (1984). In order to make that determination the appellate court may:
(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[Id. at 364-65.] In other words, we may only disturb a trial judge's sentencing decision in three situations. State v. Carey, 168 N.J. 413, 430 (2001). Those situations are: "(1) the trial court failed to follow the sentencing guidelines, (2) the aggravating and mitigating factors found by the trial court are not supported by the record, or (3) application of the guidelines renders a specific sentence clearly unreasonable." Ibid.
An appellate court should not "substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). Consideration of inappropriate aggravating factors violates the sentencing guidelines and can constitute reversible error. State v. Kromphold, 162 N.J. 345, 355 (2000).
In this case, defendant does not contest that he had a prior record, and, based on his numerous arrests and convictions, it is clear that there is a risk that he will re-offend. The trial judge also properly found that the State has an interest in deterrence. Regarding the trial judge's determination that there were no mitigating factors, we find no abuse of discretion. Given the aggravating factors present in this case and the absence of any mitigating factors, the fact that defendant was clearly eligible for an extended term under the statute, and the nature of the act involved, we do not find that the sentence shocks our judicial conscience or constitutes an abuse of discretion.
As we have mentioned earlier in this opinion, N.J.S.A. 2C:44-5(a)(2) only permits one sentence for an extended term to be imposed. Given the variance between the sentencing transcript and the judgment of conviction with respect to the aggravated assault conviction, we remand the matter so that defendant's sentence can be clarified on the record. In all other respects, we affirm.
Affirmed, but remanded for resentencing in conformance with this opinion.