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State v. Herrerra

November 12, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALFONSO HERRERRA, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NELSON GONZALEZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 93-03-0064.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 22, 2010

Before Judges Fisher, Sapp-Peterson and Simonelli.

This is the third time these cases have been before us. The first time -- defendants' direct appeals -- we affirmed their convictions for weapons offenses and the attempted murder of a state trooper, who had stopped their vehicle on Route 78 in Warren County, as well as drug offenses based on evidence seized during that encounter.

In seeking post-conviction relief (PCR), defendants argued the stop of their vehicle was racially motivated. In the appeals of the orders denying their PCR petitions and motions for racial-profiling discovery, we reversed and directed the PCR judge to reconsider the PCR petitions, and the State's claim that defendants' convictions were attenuated from the alleged unlawful stop after racial-profiling discovery was turned over. State v. Gonzalez, 382 N.J. Super. 27, 43 (App. Div. 2005), certif. denied, 192 N.J. 291 (2007).

Following our remand, the PCR judge granted the State's motion to dismiss the drug offenses; as a result, he concluded that the discovery sought was no longer relevant to the other convictions and denied the PCR petitions.

In the current appeals, which have been calendared back-to-back, we consider whether the PCR judge failed to adhere to our earlier mandate, prematurely ruled on the State's attenuation theory, and erred in concluding that racial profiling discovery was relevant only to the dismissed drug offenses.

I.

The issues in question arise from the following circumstances:

[O]n August 16, 1992, at approximately 10:00 p.m., State Trooper David Acevedo observed defendant [Herrerra] driving a vehicle at a high rate of speed on Route 78 in Warren County. Gonzalez was a passenger in the vehicle. The Trooper's radar unit clocked the vehicle traveling at sixty-eight miles per hour in a fifty-five mile per hour zone. The Trooper stopped the vehicle and requested defendant's driving credentials. Defendant produced a Missouri driver's license bearing his name with an address in Kansas City. He did not have the registration for the vehicle but did have the title which revealed a different spelling of his name than how it was spelled on his driver's license. Further, the title listed defendant's address at a location in Reading, Pennsylvania.

The Trooper directed defendant to exit the vehicle and asked him where he had come from. He replied that he had come from New York but could not identify a particular part of the State. When he was asked about the passenger in the vehicle, defendant stated that he did not know Gonzalez's last name; he only knew Gonzalez as Nelson.

Based upon these events, the Trooper asked Gonzalez to exit the vehicle. Upon questioning, Gonzalez also did not know where they had come from, other than New York. When asked for identification, Gonzalez displayed a Missouri driver's license with the same address as defendant's, a peculiar circumstance after defendant stated that he did not know Gonzalez's last name.

Based on these discrepancies, the Trooper asked defendant to consent to a search of the vehicle. The Trooper obtained a consent to search form for defendant's signature. Defendant indicated that he did not understand the form and therefore wanted assistance from Gonzalez. At this time, the Trooper had defendant and Gonzalez separated for reasons of safety. He then called Gonzalez to exchange places with defendant so that Gonzalez could review the consent to search form.

As Gonzalez looked at the form, defendant started approaching the Trooper and said he would sign the form. Gonzalez then grabbed the Trooper from behind in a "bear hug." Defendant then charged the Trooper and began to choke him. During the ensuing struggle, Gonzalez attempted to obtain the Trooper's gun while urging defendant to choke the Trooper. At the same time, defendant was urging Gonzalez to "get it," meaning the gun. Although the remarks by defendant and Gonzalez were spoken in Spanish, the Trooper, who is Hispanic, understood them. Eventually the Trooper was able "to break the grip of Gonzalez who had a hold of [his] weapon and [he] was able to retrieve his weapon from his holster." He pulled out his weapon and "fire[d] two rounds in the direction of defendant and Gonzalez." Defendant was wounded by one of the shots and therefore was unable to move. The Trooper prevented Gonzalez from attempting to flee. Other officers arrived on the scene and arrested defendants. They were transported to the hospital for medical assistance.

Subsequently, a warrant was obtained and a search of the vehicle was conducted. The search revealed more than fourteen ounces of cocaine. [Gonzalez, supra, 382 N.J. Super. at 34.]

Defendants were tried separately and each convicted of: attempted murder, N.J.S.A. 2C:5-1; N.J.S.A. 2C:11-3a(1) and (2); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(1); attempted possession of a handgun for an unlawful purpose, N.J.S.A. 2C:5-1; N.J.S.A. 2C:39-4a; attempted unlawful possession of a handgun, N.J.S.A. 2C:5-1; N.J.S.A. 2C:39-5b; and hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(1). Herrerra was also convicted of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5), and speeding, N.J.S.A. 39:4-98. Gonzalez was charged with third-degree aggravated assault but the jury found him guilty of the lesser-included offense of simple assault, N.J.S.A. 2C:12-1a. Defendants each received an aggregate terms of forty years with a seventeen-year period of parole ineligibility. We affirmed the judgments of conviction, State v. Gonzalez, No. A- 3902-95 (App. Div. Apr. 23, 1998); State v. Herrerra, No. A-5353-95 (App. Div. Apr. 23, 1998), and the Supreme Court denied defendants' petitions for certification, State v. Gonzalez, 156 N.J. 406 (1998); State v. Herrerra, 156 N.J. 406 (1998).

Defendants thereafter filed PCR petitions alleging, among other things, they were victims of racial profiling. Questions regarding defendants' entitlement to racial-profiling discovery were considered by Judge Walter R. Barisonek, who had been designated by the Supreme Court to hear all motions for discovery relating to racial profiling by the New Jersey State Police. See State v. Lee, 190 N.J. 270, 274 (2007). Judge Barisonek concluded there was "sufficient intervening cause of a separate nature independent from the discriminatory act either post-stop or pre-stop which would take it out of racial profiling," and denied defendants' requests for discovery. As a result, defendants were ...


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