November 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PEDRO SOLAR, A/K/A PEDRO SOLER, A/K/A PETE SOLER, A/K/A PETER SOLER, A/K/A SAM SOLER,
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-02-0146.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2010 - Decided Before Judges Payne and Baxter.
Following a trial by jury, defendant was convicted of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), for which the judge sentenced him to a four-year term of imprisonment with no eligibility for parole.*fn1 We reject defendant's contention that: the trial judge erred when he permitted the State to impeach defendant's credibility with his prior convictions from 1993 and 1997; the prosecutor's comments in summation denied him a fair trial; and the sentence imposed by the court was excessive. We affirm defendant's conviction and sentence.
I. On December 6, 2004, C.A., age twenty-one, arrived for a job interview in Elizabeth at a company known as Point Management. In the second-floor office, C.A. completed the job application and was met by defendant, who introduced himself and escorted her to his office. Although the interview began with defendant asking C.A. routine questions about her education and prior employment, defendant's questions soon veered off into areas that made C.A. uncomfortable. Defendant began telling C.A. "about himself and . . . his background [and] his lifestyle . . . ." He told C.A. there were "certain things he didn't want his wife to even know about, and that as his office assistant, his right-hand man [sic], [she] would have to . . . hold certain things" and keep them private. He also asked her several intrusive personal questions.
A few minutes later, after commenting that it was "unprofessional" for C.A. to keep her overcoat on during the interview, defendant asked her to remove her coat and hang it on the coat rack. After hanging her coat on the rack, C.A. turned around to walk back to the chair, only to find defendant "face-to-face" with her, six inches away. Defendant grabbed C.A. in a "bear hug," which pinned her arms at her side. Defendant began to grind his penis against her body while saying, "say you like it. You know you like it." He then kissed her forcibly on her lips and neck.
Eventually C.A., who was only five feet tall and weighed only 110 pounds, was able to break free and run to the stairwell. Defendant followed her and caught up with her on the landing between the first and second floors. After telling C.A. she "had the job," defendant forcibly pushed her against the wall and, while holding her against the wall, put his hands inside her pants and touched her vagina. He then exposed himself and ejaculated onto her pants and the floor.
The next day, at the urging of her mother, C.A. reported defendant's conduct to police. A DNA analysis of the semen stains on C.A.'s pants established that the semen was defendant's.
At a hearing held prior to jury selection, the judge ruled that if defendant took the stand and testified, the State would be permitted to impeach his credibility with two 1993 Florida convictions for receiving stolen property and with a December 1997 New Jersey conviction for sexual assault. At the time of sentencing on the sexual assault conviction, defendant was sentenced to a three-year term of probation; however, when he violated that probation (VOP) he was resentenced in July 1999 to a four-year term of imprisonment. The judge authorized the State to confront defendant with all three of his convictions.*fn2
In concluding that the probative value of the 1993 and 1997 convictions for impeachment purposes was not outweighed by the potential prejudice to defendant, the judge observed that the 1997 conviction was for a crime so "serious" that it "drag[ged] with it the  Florida conviction[s]." The judge commented that although defendant's sexual assault conviction in New Jersey occurred in 1997, defendant was resentenced in 1999 to a four-year term of imprisonment when he was found guilty of violating probation. Therefore, according to the judge, the amount of time that elapsed between defendant's release from prison on the VOP and his commission of the instant offenses in December 2004 was not so great as to render the sexual assault conviction "remote" for purposes of analysis under State v. Sands, 76 N.J. 127, 144-45 (1978).
Ultimately, defendant chose not to testify. Instead, he presented various documents, including C.A.'s resume, a copy of her employment record from her prior employment at Furniture King, and portions of the civil complaint she had filed against him seeking monetary damages as a result of the incident of December 6, 2004.
In his summation, the prosecutor discussed defense counsel's argument that the sexual activity between defendant and C.A. on December 6, 2004 was entirely consensual. The prosecutor stated, "Ladies and gentlemen, excuse my sarcasm, but I just find this so ridiculously unbelievable that you could believe any of that."
After the prosecutor completed his summation, defendant objected, arguing that the prosecutor's summation "disparag[ed] the defense" by arguing that in light of the incriminating DNA evidence, defendant had no choice other than to argue that C.A. consented to defendant's sexual advances. Defendant maintained that the prosecutor had, in effect, suggested to the jury that the defense presented merely a "manipulative defense." Last, defendant maintained that when the prosecutor asked the jury to "pardon his sarcasm" the prosecutor "overstepped," because such a remark impermissibly reflected the prosecutor's personal opinion of defendant's guilt. The judge sustained defendant's objection and agreed to give the jury a curative instruction. At the beginning of his charge to the jury, the judge stated: And before I proceed any further there are a few comments and a few instructions I want to give you regarding some comments that were made by the prosecutor during his summation. First of all, to the extent that his comments can be taken as disparaging [defense counsel] and the defense, those comments were inappropriate. Second of all, to the extent that [the prosecutor] made comments that something was ridiculously unbelievable, it's not appropriate for the prosecutor to inject his own personal beliefs and you should not consider . . . his comments in that regard in any way . . . in your deliberations . . . .
The jury returned a verdict, acquitting defendant of second-degree attempted sexual assault but convicting him of fourth-degree criminal sexual contact. At the time of sentencing, the judge found the existence of aggravating factor one, the nature and circumstances of the offense and whether the offense was committed in an especially heinous, cruel or depraved manner, N.J.S.A. 2C:44-1(a)(1); and aggravating factor three, the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3). As to aggravating factor one, the judge observed that defendant had attacked C.A. not once, but twice, and had used more force than was minimally necessary to commit the crime of criminal sexual contact. The judge observed that he was not giving aggravating factor one "controlling weight," but believed it worthy "of some consideration." The judge found mitigating factor eleven, the imprisonment of defendant would impose an undue hardship on his family, N.J.S.A. 2C:44-1(b)(11). After weighing the two aggravating factors against the one mitigating factor, and after finding that N.J.S.A. 2C:43-6.4(e) required him to impose an extended-term sentence, all of which must be served without parole ineligibility, the judge sentenced defendant to a four-year term of imprisonment, with a four-year period of parole ineligibility.
On appeal defendant raises the following claims:
I. THE TRIAL COURT'S ERRONEOUS RULING THAT DEFENDANT'S PRIOR CONVICTIONS COULD BE UTILIZED TO AFFECT HIS CREDIBILITY PREVENTED THE DEFENDANT FROM TESTIFYING AND DEPRIVED HIM OF A FAIR TRIAL.
II. THE PROSECUTOR'S IMPROPER COMMENTS IN SUMMATION RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S RIGHT TO HAVE THE JURY FAIRLY DETERMINE THE CHARGES AGAINST HIM.
III. THE SENTENCE IMPOSED BY THE COURT IS MANIFESTLY EXCESSIVE.
II. In Point I, defendant maintains that the trial judge committed reversible error when he permitted the prosecutor to impeach defendant's credibility, if he chose to testify, with convictions so remote that their probative value for impeachment purposes was vastly outweighed by their prejudicial effect. Defendant argues: That something occurred between the victim and the defendant was not in dispute.
How it occurred and under what circumstances was. It was critically important to defendant that he be able to testify to his version of the events without the undue prejudice that would flow from the admissibility of his remote prior convictions. The court's error, in ruling the defendant's prior convictions were admissible for purposes of impeachment, prevented defendant from testifying and deprived him of the ability to present a proper defense.
Our review of a judge's decision to permit the State to impeach a defendant with his prior convictions pursuant to State
v. Sands, supra, is deferential. We will not disturb the judge's decision absent an abuse of discretion. Sands, supra, 76 N.J. at 144. When a trial judge is asked by the State to permit the impeachment of a defendant with his prior convictions, evidence of the prior conviction "shall be admitted unless excluded by the judge as remote or for other causes." N.J.R.E. 609. As the Supreme Court observed in Sands, "[t]he key to exclusion is remoteness," but remoteness "cannot ordinarily be determined by the passage of time alone" because "[s]erious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect . . . ." Sands, supra, 76 N.J. at 144. Therefore, "a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant." Id. at 144-45.
In making the determination about remoteness, the trial judge must also consider "intervening convictions between the past conviction and the crime for which the defendant is being tried[,]" because if the defendant has "been convicted of a series of crimes through the years, then the conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible." Id. at 145.
Defendant maintains that the trial judge erred when he determined that defendant's 1999 VOP incarceration was an "intervening conviction," ibid., which served to render the 1993 Florida convictions less distant in time than they would have been had there not been an intervening VOP conviction. While we agree with defendant's contention that a violation of probation is not an intervening conviction for purposes of a Sands analysis, State v. Jenkins, 299 N.J. Super. 61, 71-75 (App. Div. 1997), we do not agree that the judge treated the VOP as an intervening conviction. Instead, the judge reasoned that because defendant was incarcerated for a period of time on the VOP, only four or five years elapsed between the time defendant was released from prison on the VOP and the date he committed the crime for which he was on trial.
We need not decide whether the judge's analysis of that issue was correct, as we are satisfied that even without the intervening VOP term of imprisonment, the 1997 conviction for sexual assault was not so remote as to have required the judge to exclude it on grounds of remoteness. The crime for which defendant was on trial was allegedly committed on December 6, 2004. Therefore, only seven years elapsed between his 1997 conviction and the present offense. Under such circumstances, the judge did not abuse his discretion when he concluded that the sexual assault conviction was not so remote as to require its exclusion. Similarly, the 1993 Florida convictions for receiving stolen property, occurring only four years before the 1997 sexual assault conviction, were likewise not so remote as to require exclusion in light of the Supreme Court's holding in Sands that a conviction that would otherwise be deemed too remote will nonetheless be admissible if there are intervening convictions. Sands, supra, 76 N.J. at 145. We therefore reject defendant's contention in Point I that the trial judge abused his discretion when the judge authorized the State to impeach him with his 1993 and 1997 convictions if he chose to testify.
III. In Point II, defendant maintains that the prosecutor's remarks in summation denied him a fair trial and the judge's curative instruction was not adequate to erase the prejudice that the prosecutor's remarks had caused. Although prosecutors are permitted to make forceful arguments in summation, State v. Frost, 158 N.J. 76, 82 (1999), they are not permitted to express a personal opinion regarding the defendant's guilt, Jenkins, supra, 299 N.J. Super. at 70, or to "cast unjustified aspersions on the defense or defense counsel," State v. Nelson, 173 N.J. 417, 461 (2002).
However, as both we and the Supreme Court have recognized, a prosecutor's closing argument that exceeds the legitimate bounds of advocacy does not, without more, entitle a defendant to reversal of his conviction. State v. R.B., 183 N.J. 308, 333-34 (2005); State v. Murphy, 412 N.J. Super. 553, 560 (App. Div.), certif. denied, ___ N.J. ___ (2010). When a prosecutor's remark is improper, a reviewing court must evaluate the prosecutor's comments in the context of the overall "tenor of the trial and [the] degree of responsiveness of both counsel and the court to improprieties when they occurred." R.B., supra, 183 N.J. at 332-33. Having considered the prosecutor's remarks in light of the standards articulated in Jenkins and Nelson, we have no quarrel with defendant's argument that the remarks in question were improper. We are satisfied, however, that the judge's forceful, unambiguous and thorough instruction to the jury, which was issued immediately after the prosecutor completed his summation, was fully effective to eradicate any prejudice the prosecutor's unfortunate remarks may have caused. We thus reject the claim defendant advances in Point II.
IV. Last, in Point III, defendant maintains the sentence imposed was excessive. In particular, he maintains that the judge's finding of aggravating factor one was an impermissible double-counting of an element of the offense. Having carefully considered defendant's arguments in light of the record and the governing law, we are satisfied that defendant's arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, the judge's conclusion that defendant subjected C.A. to two separate indignities, and used more force than was necessary to accomplish the crime of sexual contact, did not double-count any of the elements of the offense. See State v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992) (observing that where a defendant inflicts more than the one serious bodily injury necessary to establish the crime of aggravated assault, the additional injuries properly serve as a basis for a finding of aggravating factor one). Defendant's arguments respecting the sentence imposed are insufficient to persuade us that the judge abused the broad sentencing discretion afforded him by State v. Roth, 95 N.J. 334, 364-65 (1984).