August 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL JIMENEZ, A/K/A MICHAEL JIMMENEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-12-1042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 20, 2010
Before Judges Gilroy and Sapp-Peterson.
A jury found defendant guilty of third-degree burglary, N.J.S.A. 2C:18-2. On October 24, 2008, the trial court sentenced defendant to a four-year term of imprisonment. The court also ordered defendant to pay restitution in the amount of $455, and to pay all appropriate fines and penalties.
On appeal, defendant argues:
THE DEFENDANT'S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S DISCOVERY VIOLATION, RESULTING IN UNFAIR SURPRISE AND THE SUPPRESSION OF DEFENSE EVIDENCE.
THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LAW OF PRIOR INCONSISTENT STATEMENTS. (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS FROM ABSENTEE WITNESSES. (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS WITNESS HAD FIRST-HAND KNOWLEDGE OF THE FACTS (NOT RAISED BELOW).
THE SENTENCE IS EXCESSIVE.
A. THE DEFENDANT IS ENTITLED TO THE PRESUMPTION OF NON-INCARCERATION.
B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
On August 19, 2007, at approximately 1:00 a.m., Helen Sikora heard voices outside her bedroom window. Looking out her window, Sikora observed two males, one taller and thinner than the other, standing near her neighbor's motor vehicle. The taller male wore a dark, short-sleeved shirt and dark pants; the other wore long shorts. However, Sikora could not observe their faces. Sikora next observed the taller of the two lean into the driver's seat of her neighbor's car, and then walk toward her husband's motor vehicle that was parked in the driveway. Upon observing that person pull on the handle of the vehicle, Sikora telephoned the police.
The Clark Police Department dispatched Patrolman Patrick Grady to the Sikora home. Upon observing two males walking near the Sikora residence, Grady pulled his patrol vehicle directly behind them and ordered the two individuals to walk toward his vehicle. Upon approaching the patrol vehicle, one of the individuals, later identified as defendant, ran between two nearby homes, while the other responded to the officer's instruction. Grady subsequently located and arrested defendant. On searching defendant, Grady found loose change and a black "iPod"*fn1 that belonged to Sikora's neighbor, Jennifer Fuentes. However, in preparing his police report on the night of the incident, Grady indicated in the report that the iPod was found on the second individual, Melanio Polanko, not on defendant.
At trial, Grady testified that he found the black iPod on defendant. When questioned about the discrepancy between his trial testimony and the statement contained in his police report, Grady acknowledged noticing the discrepancy in preparing for trial with the Assistant Prosecutor several months earlier. Grady stated that he advised the Assistant Prosecutor that the statement contained in his police report was not accurate, and that the black iPod was found on defendant. However, the Prosecutor never informed defense counsel of the error prior to Grady testifying at trial.
Defendant first argues that the State's failure to advise him prior to trial that the mistaken statement contained in Grady's police report violated his right to due process under the United States and the New Jersey Constitutions. Defendant contends that up until Grady testified at trial that the black iPod was found on defendant, he was relying on the information contained in the police report intending to argue that the burglary was committed by co-defendant. Defendant asserts that Grady's testimony should have been suppressed, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963). We disagree.
A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence material to either his guilt or punishment. California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed. 2d 413, 420 (1984). Our courts have also held that a defendant has a constitutionally protected privilege to obtain evidence material to either his guilt or innocence. State v. Hollander, 201 N.J. Super. 453, 478 (App. Div.), certif. denied, 101 N.J. 335 (1985). Thus, the withholding of evidence favorable to a defendant constitutes a denial of due process and a denial of the right to a fair trial. Ibid.
In Brady, supra, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed. 2d at 218, the United States Supreme Court declared that "the suppression by the prosecution of evidence favorable to an accused... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Accord State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed. 2d 788 (1999); State v. Russo, 333 N.J. Super. 119, 133-34 (App. Div. 2000). Such exculpatory evidence includes not only directly exculpatory evidence but also evidence that may impeach the credibility of a State witness. Russo, supra, 333 N.J. Super. at 134. It includes any evidence contained in the prosecution's files, even if not directly known to the prosecutor. Nelson, supra, 155 N.J. at 498.
"In order to establish a Brady violation, the defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268 (1999). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed. 2d 481, 494 (1985). Our Supreme Court has stated that the focus should be on the essential fairness of the trial. State v. Carter, 69 N.J. 420, 433 (1976). The test is whether the evidence could induce reasonable doubt as to the verdict or would tend to exculpate defendant. Id. at 433-34. The focus of Brady, however, is on nondisclosure of exculpatory evidence. State v. Morton, 155 N.J. 383, 413 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001).
Defendant's contention that the State committed an irremediable Brady violation has no merit because the evidence was disclosed to defendant during the trial. Federal courts have found that "[n]o denial of due process occurs if Brady material is disclosed to [defendants] in time for its effective use at trial." United States v. Higgs, 713 F.2d 39, 44 (3d. Cir. 1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 725, 79 L.Ed. 2d 185 (1984); see also Martini, supra, 160 N.J. at 270 n.5.
Although the evidence was relevant as to the officer's credibility, no proof exists that the State suppressed evidence as in Brady or Russo. To the contrary, Grady testified at trial that he had made a mistake in preparing his police report and was fully cross-examined on that issue by defense counsel. Indeed, when questioned by the court as to whether defendant was prejudiced by the State's failure to disclose the officer's mistake pre-trial, defense counsel replied that she did not believe defendant was prejudiced, and that if the information had been disclosed prior to trial, it would not have changed her trial preparation in any way. Rather, defense counsel argued the information was relevant to the officer's credibility as to whether he ever found the iPod on defendant, asserting that the State was "making it up to try and cover it because they don't have Melanio Polanko and they want the [iPod] to be [on] Michael Jimenez."
Defendant also argues that the court should have suppressed Grady's testimony because the failure to reveal the mistake in his police report pre-trial constituted a discovery violation. Although we agree that it would have been preferable had the prosecutor informed defense counsel that the officer's police report statement concerning co-defendant's possession of the iPod was a mistake, we find no error in the trial court's ruling warranting a reversal. State v. Toro, 229 N.J. Super. 215, 223 (App. Div. 1988) (holding that a trial court has broad discretion in determining what sanctions to impose upon a party who fails to comply with discovery obligations), certif. denied, 118 N.J. 216 (1989).
The record fails to support defendant's assertion that the prosecutor's failure to notify him of the mistake in the police report was intentional or designed to mislead. Moreover, we find no prejudice as defense counsel cross-examined the officer as to the difference between the statements contained in the police report versus his trial testimony, and argued that fact to the jury, contending that the officer testified as he did "[b]ecause it makes their case for them."
In Point IV of his brief, defendant argued that his sentence was excessive. Defendant contends that he was entitled to the presumption of non-incarceration and that the trial court made inappropriate findings of fact in enhancing his sentence. Not so.
When reviewing a sentence, we determine whether the trial court exercised its discretion "based upon findings of fact that are grounded in competent, reasonably credible evidence," and whether the court applied the correct legal principles to those findings. State v. Roth, 95 N.J. 334, 363 (1984). We will only reverse a sentence where the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 364. "The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994); accord State v. Cassady, 198 N.J. 165, 180 (2009).
Here, after finding aggravating sentencing factors, N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating sentencing factors, N.J.S.A. 2C:44-1b, the trial court sentenced defendant to a four-year term of imprisonment. Defendant's argument that he was entitled to the presumption of non-incarceration, N.J.S.A. 2C:44-1e, is without merit. That statute provides that a person convicted "of an offense other than a crime of the first or second degree, who has not previously been convicted of an offense," is generally entitled to a presumption of non-imprisonment. The term "offense" is defined in the New Jersey Code of Criminal Justice (Code) as including disorderly persons offenses. N.J.S.A. 2C:1-14k. Defendant was previously convicted of the disorderly persons offense of theft by an unlawful taking. We conclude that the trial court properly "adhered to the sentencing principles set forth in the Code and defined in our case law." State v. Bieniek, 200 N.J. 601, 612 (2010). Accordingly, we find no reason to interfere with the sentence imposed.
We have considered the balance of defendant's arguments, and we conclude that all of the remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).