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State v. Devello

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 29, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN L. DEVELLO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, No. I-07-01-209.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 27, 2010

Before Judges Wefing and LeWinn.

Defendant, John L. DeVello. was charged in a one-count indictment with first-degree robbery, N.J.S.A. 2C:15-1. A jury found him guilty. The trial court sentenced defendant to ten years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed his conviction and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On the morning of May 15, 2006, defendant, using his employer's van, drove to the Town and Country Shopping Center in Lakewood. Once there, he entered Elisa's Pastry Shop; the only other person in the store was the cashier, Maddalena Petrone. When she asked if she could help him, defendant responded by demanding the money in the cash register. She screamed and ran out the rear entrance. Defendant took the cash drawer from the register and ran to his van and drove away. Several people had seen defendant both enter and leave the shopping center in a white van. One witness told Detective Steven Wexler of the Lakewood Police Department that the van had the name "Armada" on its side. On the possibility that the van in fact had the name "Amana," the detective contacted a local authorized Amana dealership.

Defendant worked for that same company as a service technician and was provided a company van to use in connection with his work. His employer testified that defendant did not show up for work on May 15 and did not respond to telephone calls. His employer checked use of the credit card with which defendant had been provided to purchase fuel for the van and learned that several evidently unauthorized gas purchases had been made over the weekend.

Defendant appeared at work the following day and was terminated. As he was walking out, Detective Wexler approached him and identified himself. Defendant immediately responded, "You got me, I don't want any trouble." Defendant was placed under arrest. He waived his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), and provided a voluntary taped statement in which he admitted taking the cash drawer from the bakery's register. He said he needed the money to purchase drugs. This taped statement was played for the jury. Although not covered in the taped statement, Detective Wexler testified that defendant denied having a gun or making any gestures to simulate holding a gun. Detective Wexler also testified to that effect before the grand jury.

At trial, Ms. Petrone testified that defendant told her that he had a gun and that he held his hands in his sweatshirt pocket in such a manner that she believed he was holding a weapon. Defendant did not testify at trial but his attorney admitted his involvement in the incident, asserting, however, that his conduct constituted a theft, and not a first-degree robbery.

Defendant raises the following arguments on appeal:

POINT I.

THE FAILURE TO CHARGE THE JURY IN CONFORMITY WITH [HAMPTON] AND [KOCIOLEK] WAS ERROR AND DEFENDANT'S CASE SHOULD BE REVERSED. (Not Raised Below)

A) Hampton Charge Was Necessary

B) [Kociolek] Charge Was Necessary

POINT II.

THE COURT FAILED TO GIVE THE REQUIRED CHARGE UNDER [STATE V. CZACHOR] IN RESPONSE TO A JURY QUESTION ABOUT HOW TO PROCEED IN LIGHT OF A FAILURE TO REACH CONSENSUS. (Not Raised Below)

POINT III.

THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)

POINT IV.

THE JUDGE ERRED IN REFUSING TO SENTENCE DEFENDANT AS A SECOND DEGREE OFFENDER[.]

We reject these contentions and affirm.

Other than his challenge with respect to his sentence, all of defendant's arguments are directed to the trial court's charge to the jury. In addition, all of defendant's arguments with respect to this charge are raised for the first time on appeal. In order to prevail, therefore, defendant must establish that the error about which he complains rises to the level of plain error, that is, it had the capacity to result in a jury reaching a decision it might otherwise not have made. R. 2:10-2.

The trial court gave a thorough instruction to the jury on the question of assessing credibility. It did not, however, include in its instructions what are generally referred to as a "Hampton" charge and a "Kociolek" charge. These omissions, defendant contends, deprived him of a fair trial.

"Under State v. Hampton, 61 N.J. 250 (1972), the court is required to instruct the jury to disregard defendant's statements if they find, after considering the evidence, the statements to be untrue." State v. Morton, 155 N.J. 383, 428 (1998) (citing Hampton, supra, 61 N.J. at 272). The general context underlying a necessary Hampton charge arises when, during the presentation of the State's case, a previous statement given by the defendant is admitted, typically a confession, and the defendant at trial disavows the accuracy of that statement. "The very purpose of a Hampton charge is to call the jury's attention to the possible unreliability of the alleged statements made by a criminal defendant." State v. Feaster, 156 N.J. 1, 72 (1998), cert. denied, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001).

That, however, is not the situation that existed at defendant's trial, for defendant contended at trial that his statement to Detective Wexler, which contained no mention of a weapon of any sort, was accurate. Failure to give a Hampton charge is not reversible error when a defendant's statement is not necessary to prove defendant's guilt or the fact that defendant acknowledged the truth of a statement. State v. Jordan, 147 N.J. 409, 425-26 (1997). The critical question for the jury to resolve was whether it accepted as credible Ms. Petrone's testimony that defendant told her he had a gun and held his hand as if he did so. The presence or absence of a Hampton charge does not bear on that question. There was no plain error.

We turn now to the issue of a Kociolek charge, in which a trial court warns the jury that oral statements of a defendant should be considered with caution, "in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." State v. Kociolek, 23 N.J. 400, 421 (1957). Defendant urges that a Kociolek charge was required to guide the jury in considering Ms. Petrone's testimony as to what defendant said to her when he entered the bakery. While such a charge is a usual and expected element in a trial court's final instructions to the jury, its absence does not always warrant a reversal, particularly in light of the fact that there was no objection made at the time of trial. Feaster, supra, 156 N.J. at 71-73; State v. Martinez, 387 N.J. Super. 129, 136-38 (App. Div.), certif. denied, 188 N.J. 579 (2006). In light of the clear instructions to the jury on the task of considering the credibility of the various witnesses, we are unable to conclude that the absence of a Kociolek charge constituted plain error in the context of this matter.

We reject, as well, defendant's assertion that the trial court erred when it did not give a Czachor charge to the jury during its deliberations. State v. Czachor, 82 N.J. 392 (1980). The jury deliberated on the afternoon of the day the attorneys gave their summations and the trial court its charge but did not reach a verdict. It returned the following day and, in the course of its deliberations, sent out the following question to the trial court:

Having not achieved consensus during our deliberations and voting, are we to consider that a not guilty result, and then move to the next lesser-included charge?

If so, we are prepared to continue to deliberate. If not, we require further instructions as to our process.

The trial court consulted with counsel and provided the following response:

The answer is as follows.

With respect to the charge, your verdict must be unanimous, unanimous not guilty, unanimous guilty, either way. Each of the twelve members of the deliberating jury must agree as to the verdict, whatever that verdict is. That is what I had instructed you at the close of the evidence, and I can only ask you, with that instruction, to please go back and deliberate further.

Both attorneys indicated they viewed this response as entirely satisfactory. The jury thereafter returned its verdict of guilty.

In the case of a jury deadlock, it is important that a trial court not pressure jurors to surrender "'honest convictions' about guilt or innocence merely to reach a unanimous verdict." State v. Figueroa, 190 N.J. 219, 221 (2007) (quoting Czachor, supra, 82 N.J. at 405 n.4). A supplemental instruction in the case of a jury deadlock should "simply remind jurors of their duty to cooperate in collective deliberations" rather than pressuring jurors to "undo" the deadlock. State v. Adim, 410 N.J. Super. 410, 425 (App. Div. 2009) (quoting Czachor, supra,, 82 N.J. at 398).

Here, we question whether the note sent out by the jury can fairly be characterized as announcing a deadlock. Further, the record indicates that the jury deliberated for more than one and one-half hours after the trial court gave the response we have set forth above, a clear indication that the jury did not perceive itself to have been coerced in any manner.

Defendant's final argument with respect to the trial court's charge is that it committed plain error by its use of the word "even" in the following sentence: "[Defendant] is presumed innocent even if he chooses not to testify." Defendant contends that the use of the word "even" in some manner subtly telegraphed to the jury the message that defendant should have testified.

Defendant's argument blithely disregards the established principle that instructions to the jury are to be read as a whole. State v. Nero, 195 N.J. 397, 409-11 (2008); State v. Gartland, 149 N.J. 456, 473 (1997); State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Docaj, 407 N.J. Super. 352, 363 (App. Div.), certif. denied, 200 N.J. 370 (2009). Defendant's argument is a tortured construct that does not warrant further discussion.

Defendant's final argument is that the trial court should have sentenced him within the range for a second-degree crime. We are unable to agree.

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted. If the court does impose sentence pursuant to this paragraph, or if the court imposes a non-custodial or probationary sentence upon conviction for a crime of the first or second degree, such sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution. [N.J.S.A. 2C:44-1f(2).]

Based on the clear and unambiguous meaning of the statute a two-prong test must be satisfied for the sentence to be downgraded: (1) clear and convincing evidence must prove that the aggravating factors are substantially outweighed by the mitigating factors, and (2) the interest of justice must require the downgrade. State v. Megargel, 143 N.J. 484, 495 (1996) (citing N.J.S.A. 2C:44-1f(2)).

We can perceive no basis upon which the trial court could have concluded that defendant fit within the scope of these principles. We find no abuse of the court's sentencing power. State v. Ghertler, 114 N.J. 383 (1989).

Affirmed.

20100629

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