January 13, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FERMIN GALVEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-12-2909.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2009
Before Judges Wefing and Grall.
Defendant Fermin Galvez appeals from a final judgment of conviction and sentence. Tried to a jury, defendant was convicted of second-degree theft by deception, N.J.S.A. 2C:20-4; third-degree forgery, N.J.S.A. 2C:21-1a(2); fourth-degree forgery, N.J.S.A. 2C:21-1a(2); false swearing, N.J.S.A. 2C:28-2a; and obstructing the administration of the law, N.J.S.A. 2C:29-1. The judge sentenced defendant to concurrent custodial terms on each count: a seven-year term for second-degree theft by deception; a four-year term for third-degree forgery; and one-year terms for the fourth-degree forgery, false swearing and obstructing the administration of the law. In addition the judge imposed fines, penalties and assessments. We affirm defendant's convictions and aggregate sentence but remand with direction for the court to merge the convictions for fourth-degree forgery and theft by deception and amend the judgment of conviction to reflect that merger and correct other errors in the form of judgment.*fn1
Defendant and Alba Morales met in 1995. In April 2004, Morales purchased a two-family residence in Newark. Although defendant was not a party to that transaction, he and Morales made the second-floor apartment their home. In October 2004, Morales was diagnosed with cancer. By December 9, 2004, the disease had advanced to obstruct one of Morales's kidneys. She was hospitalized. On December 30, 2004, Morales had a stroke that left her unable to speak or write. Morales died intestate on January 8, 2005. At the time of her death, she was still married to Salvador Morales, who became the executor of her estate.
While Morales was hospitalized, defendant visited a notary in an effort to have some paperwork notarized that would permit him to remain in Morales's home. He subsequently visited an attorney, presented the deed to the property, which listed Morales as the sole owner, and asked the attorney to prepare a new deed reflecting ownership by defendant and Morales. When defendant returned to the lawyer on January 3, 2005, he was accompanied by a woman who represented herself to be Morales. The woman had a passport, but the attorney did not examine it. She signed the deed, a certification indicating her residence in the property and an affidavit of consideration. The deed was filed on January 14, 2005.
Morales's daughters subsequently decided to sell her property and asked defendant to move out. He professed ownership and refused. Thereafter, he would not allow members of Morales's family to enter. In addition, defendant cashed a rental check issued to Morales by this State's rental assistance program as partial payment of the rent owed by Morales's tenant.
Based upon her familiarity with defendant's handwriting, Morales's daughter identified defendant as the person who signed the cancelled check.
In May 2005, Jose Valdez approached defendant because he had heard that defendant wanted to sell the two-family residence, and Valdez was interested in buying it. Valdez and Migulena Bencosme subsequently executed a contract for sale and purchase with a price of $245,000.
The closing was held on September 14, 2005. Defendant signed the deed and other essential documents as the seller. According to Valdez, defendant refused to vacate the property after the sale. When questioned by an investigator of the Essex County Prosecutor's Office, defendant denied any knowledge of the circumstances under which the deed was executed. From the proceeds of the sale of Morales's property, $200,658.46 was paid to satisfy the mortgage.
Defendant testified at trial. By his account, he lived with Morales and helped her pay the bills. The deed was changed when they applied, together, for a loan to repair and remodel the residence. He and Morales went to the lawyer together, and she signed the deed and other documents necessary to include defendant as an owner. With respect to the sale of the property, defendant testified that he did not understand that he was signing documents to complete a sale of the property. Defendant, however, admitted that he had signed Morales's check and deposited the proceeds in their joint checking account and that he had lied to an investigator of the Essex County Prosecutor's Officer about the deed.
On the foregoing evidence, the jurors found defendant guilty of theft by deception of property with a value of $75,000 or more; fourth-degree forgery by signing or soliciting another to sign the deed; third-degree forgery by signing a check in the amount of $697; false swearing; and obstructing the administration of law.
Defendant raises five issues on appeal:
I. MR. ANDERSON'S PREJUDICIAL MISCONDUCT BOTH DURING TRIAL AND IN SUMMATION DENIED MR. GALVEZ HIS RIGHT TO A FAIR TRIAL IN VIOLATION OF THE CONSTITUTIONS OF THE UNITED STATES AND NEW JERSEY.
U.S. CONST. AMENDS. VI, XIV; N.J.
CONST. ART. I, ¶ 10.
A. Mr. Anderson Engaged In Prejudicial Prosecutorial Misconduct During Cross-Examination When He Improperly Directed Mr. Galvez To Assess The Credibility of The State's Witnesses.
B. Mr. Anderson Engaged In Prejudicial Prosecutorial Misconduct Clearly Capable of Producing An Unjust Result In Summation When He Vouched For The Credibility of Mr. Eloi, Mr. DeLeon and Ms. Cammerino (Not Raised Below).
II. THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE MR. GALVEZ'S CONVICTION FOR FOURTH[-]DEGREE FORGERY, N.J.S.A.
2C:21-1(a)(2) (COUNT TWO), INTO HIS CONVICTION FOR SECOND[-]DEGREE THEFT BY DECEPTION, N.J.S.A. 2C:20-4 (COUNT ONE) (Not Raised Below).
A. A Clear Legislative Intent to Impose Multiple Punishments Does Not Exist.
B. Mr. Diaz Faced Multiple Punishments for the same offense.
C. Mr. Galvez did not voluntarily, knowingly and intelligently waive his constitutional right to assert a merger claim.
III. MR. GALVEZ RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Mr. Lopez-Montalvo Was Ineffective Because He Failed to Object When Mr. Anderson Improperly Vouched For the Credibility of Mr. Eloi, Mr. DeLeon and Ms. Cammerino In Summation.
B. Ms. Barnett Was Ineffective Because She Failed to Argue For The Merger of Mr. Galvez's Second[-]Degree Theft By Deception, N.J.S.A. 2C:20-4, And Fourth[-]Degree Forgery, N.J.S.A. 2C:21-1(a)(2), Convictions.
C. Mr. Lopez-Montalvo Was Ineffective Because He Failed To Require The State to Prove Beyond a Reasonable Doubt That The Amount Involved For The Theft By Deception Charge, N.J.S.A. 2C:20-4, Exceeded $75,000.
IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED MR. GALVEZ TO SEVEN YEARS OF IMPRISONMENT FOR COUNT ONE, TWELVE MONTHS OF IMPRISONMENT FOR COUNT TWO, FOUR YEARS OF IMPRISONMENT FOR COUNT FOUR, TWELVE MONTHS OF IMPRISONMENT FOR COUNT FIVE AND TWELVE MONTHS OF IMPRISONMENT FOR COUNT SIX BECAUSE THE TRIAL COURT FAILED TO FIND STATUTORY MITIGATING FACTORS SUPPORTED BY THE RECORD.
V. THE JUDGMENT OF CONVICTION MUST [BE] CORRECTED AS IT CONTAINS INACCURATE INFORMATION.
The issue raised in Point II, as the State concedes, has merit. Defendant's conviction for forgery based upon his role in the execution of the deed should have been merged with his conviction for theft by deception, a crime that was accomplished by forging the deed. State v. Streater, 233 N.J. Super. 537, 544 (App. Div.), certif. denied, 117 N.J. 667 (1989). Accordingly, defendant's conviction for forgery must be vacated.
We turn to consider defendant's claim that prosecutorial transgressions during trial and in closing argument require reversal of his conviction, which is based on questions posed by the prosecutor during his cross-examination of defendant and arguments presented in the State's closing argument to the jurors. Although the questions and arguments were improper, we cannot conclude that the prosecutorial excess had the capacity to deprive defendant of a fair trial. R. 2:10-2.
On two occasions the prosecutor asked defendant whether the witnesses who had testified on behalf of the State were lying. In the first instance, the judge sustained defense counsel's prompt objection to the question before defendant responded. In the second instance, which immediately followed the judge's ruling, the prosecutor withdrew the question and ended his cross-examination.
There are a number of published decisions that prohibit prosecutors from asking witnesses to comment on the veracity of others who have testified in the case. See, e.g., State v. Bunch, 180 N.J. 534, 549 (2004). The prosecutor's repetition of his error immediately after the judge sustained one objection to a question of that ilk warrants condemnation as inconsistent with the prosecutor's obligations.
Nonetheless, because of defense counsel's prompt objection and the judge's immediate ruling on the impropriety of the question, the asking did not have the capacity to produce an unjust result. State v. Frost, 158 N.J. 76, 88-89 (1999) (declining to adopt a per se rule requiring a new trial despite the harmlessness of error in the particular case). The central prejudice inherent in such questions is the unfairness of defendants being forced to "choos[e] to either undermine their own testimony or essentially accuse another witness of being a liar." United States v. Harris, 471 F.3d 507, 511 (3d Cir. 2006). Because the court sustained the objection, defendant was not confronted with that choice.
Moreover, the judge's final charge to the jury further dissipated the potential that the jurors would rely on the prosecutor's view of defendant's credibility, implicit in the phrasing of the question. This judge directed the jurors that they are "the sole and exclusive judges of the evidence, of the credibility of witnesses and the weight to be attached to the testimony of each witness." The judge also instructed that "[a]rguments, statements [and] remarks . . . of counsel are not evidence" and emphasized that "[t]he comments of the attorneys are not controlling." Absent evidence to the contrary, we assume that the jurors heeded the judge's clear direction and disregarded the improper question. State v. Brown, 180 N.J. 572, 583 (2004); State v. Manley, 54 N.J. 259, 270 (1969).
Defendant's second claim of error injected by the prosecutor is to arguments presented in the State's summation. The prosecutor suggested that three witnesses - the mortgage banker, the clerk for the title insurance company and the lawyer who prepared the deed - had no reason to lie and that the lawyer would place his career at risk by lying. With respect to the mortgage banker and title insurance clerk, the arguments can be viewed as permissible comment on the absence of evidence that those witnesses had any interest in the outcome. In contrast, the argument suggesting that the lawyer, as "a member of the bar," had "everything to lose by coming here and lying" was improper. It is well-settled that prosecutorial arguments relying upon the potential consequences for police officers who lie in court are improper, because the inferences suggested are not grounded in the evidence, invite speculation about consequences of the verdict for the witness and implicitly urge the jurors to credit the testimony because of the witness's status. Frost, supra, 158 N.J. at 85-86. The argument about the lawyer's reasons to be truthful presented problems of the same sort although in a manner less blatant.
Defense counsel did not object to these arguments when they were presented. The fact that the attorney let the comments pass "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). For that reason, reviewing courts generally do not deem arguments made without objection to be prejudicial. State v. Josephs, 174 N.J. 44, 124 (2002).
Reversal is appropriate when the argument was "so egregious that it deprived [the] defendant of a fair trial." State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996) (internal quotation omitted). While improper, the prosecutor's comments on the lawyer's credibility did not rise to that level, especially when considered in light of the judge's clear instruction explaining the respective roles of the attorneys and the jurors and stressing the jurors' "exclusive" responsibility to evaluate the credibility of the witnesses based on their testimony and the evidence. We also note that the lawyer's testimony was relevant to establish that the deed conveying an interest in the property to defendant was signed after Morales died, but his testimony was not the only evidence on that critical issue. Thus, we have no doubt that the prosecutor's argument, while demonstrative of his ignorance or disregard of the law, was incapable of depriving defendant of a fair trial or leading the jurors to reach a verdict that they would not have returned if the argument had not been made.
Defendant contends that the performance rendered by his attorney was deficient in several respects and warrants reversal of his convictions. That relief is appropriate when the defendant "identif[ies] specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 2068, 80 L.Ed. 2d 674, 694, 698 (1984)); see State v. Allegro, 193 N.J. 352, 366 (2008) (noting that "a defendant must prove an objectively deficient performance by defense counsel, and that such deficient performance so inured to the defendant's prejudice that it is reasonably probable that the result would" have been different but for counsel's error). Ordinarily, a claim of ineffective assistance is not addressed on direct appeal because the assessment generally requires consideration of facts not disclosed by the record. State v. Preciose, 129 N.J. 451, 460-62 (1992). The claims presented in this case, however, can be resolved on the record and do not have sufficient merit to require discussion beyond the comments that follow. R. 2:11-3(e)(2).
Defendant cannot establish prejudice based upon his attorney's failure to object to the prosecutor's summation. As we have noted above, the argument was not "egregious" and the judge's final charge to the jury provided proper guidance to the jurors. The only direction that was omitted and would have been given if an objection had been raised was a specific mandate to disregard the improper argument. We are confident that there is no "reasonable probability" that the verdict would have been different if the argument had been stricken. Jack, supra, 144 N.J. at 249.
Similarly, defendant cannot claim that he is prejudiced due to counsel's failure to argue that his conviction based on forgery of the deed and his conviction for theft by deception should be merged. The error has been corrected by this decision, and reversal of the conviction is not warranted to cure the only prejudice defendant suffered.
Finally, defendant claims his attorney's performance was deficient for failure to present an argument that the property he took by deception had a value of less than $75,000 because the real estate was mortgaged. N.J.S.A. 2C:20-2b(1)(a) defines second-degree theft to include thefts in which the "amount involved is $75,000.00 or more." A general provision of the Penal Code, N.J.S.A. 2C:1-14m provides: "Where it is necessary in this act to determine value, for purposes of fixing the degree of an offense, that value shall be the fair market value at the time and place of the operative act." Defendant presents no legal argument as to why the value of the property to him, fair market value minus the mortgage due, would control and N.J.S.A. 2C:1-14m would not. Accordingly, we cannot conclude that trial counsel deviated from professional standards by not presenting the argument urged by appellate counsel without reference to legal authority.
In sum, defendant is not entitled to reversal of his convictions based on error committed by the court, the prosecutor or defense counsel.
Defendant also challenges the sentence imposed. His argument is that the judge disregarded mitigating factors available to a defendant who has not caused, threatened or contemplated serious harm. N.J.S.A. 2C:44-1b(1)-(2). Defendant again relies on the evidence relevant to the value of the property and the intention of Morales's heirs to sell the property. On the facts of this case, we cannot conclude that the judge abused his broad discretion by finding that defendant's actions in depriving the decedent's heirs of the value of the house, although not involving physical harm, was sufficiently harmful to preclude mitigation on those grounds. Those determinations are supported by the record, and this court may not "second-guess" them. State v. Cassady, 198 N.J. 165, 180-81 (2009).
Based upon our review of the sentencing transcript and defendant's criminal record, which includes a prior conviction, there is no basis for this court to disturb defendant's sentence. The judge "weighed and considered the relevant aggravating and mitigating factors," and we must affirm the sentence unless it "shocks the judicial conscience." Id. at 181. The seven-year term for theft by deception is at the middle of the range for a crime of the second degree, and defendant's sentences are all concurrent with that seven-year term. Any intervention by this court would be improper.
Affirmed and remanded for merger and correction of the judgment of conviction.