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State of New Jersey v. Rafael G. Pichardo


February 8, 2011


On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-05-1113.

Per curiam.


Argued September 28, 2010 Decided

Before Judges Carchman and Waugh.

Defendant Rafael G. Pichardo appeals his conviction for second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (Count I); third-degree aggravated assault on a police officer, contrary to N.J.S.A. 2C:12-1(b)(5) (Count III); fourth- degree aggravated assault by throwing bodily fluid at certain law enforcement officers, contrary to N.J.S.A. 2C:12-13 (Counts IV and VI); third-degree resisting arrest by use or threat of force, N.J.S.A. 2C:29-2(a) (Count VII); fourth-degree obstructing administration of law, N.J.S.A. 2C:29-1 (Count

VIII); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (Count IX).*fn1 He also appeals from the aggregate sentence of fifteen years of incarceration. We affirm the conviction, but remand for resentencing with respect to all counts, except Count I, and for reconsideration of a consecutive sentence on Count



We discern the followings facts and procedural history from the record.

On February 11, 2007, Officer Dean Dooley of the Atlantic City Police Department and six other officers were assigned to a security detail at the Casbah nightclub at the Taj Mahal casino. Pichardo and his wife entered the Casbah between 12:30 and 1:00 a.m. on February 12. At approximately 5:00 a.m., Dooley observed Pichardo slam a stanchion to the ground. Dooley approached him and asked him to pick up the stanchion. Pichardo did not do so. His wife then approached and picked it up.

Pichardo walked to the dance floor, but continued looking at the officers, because he felt that he had been disrespected. He also gestured towards them with his middle finger. His wife attempted to calm and restrain him. Dooley approached Pichardo, took his arm, and attempted to escort him out of the club.

According to Pichardo, he was struck in the head and blacked out, regaining consciousness only after he had been handcuffed. He testified at trial that he was unable to remember the intervening events.

Dooley testified that Pichardo escaped his grasp, after which Pichardo punched Sergeant Christopher Applegate, who was assisting him in trying to escort Pichardo out of the club. Applegate was eventually knocked to the ground, striking his head on a piece of furniture as he fell. A struggle among Pichardo, Dooley, and Applegate followed, as the police officers attempted to subdue Pichardo.

Dooley attempted to handcuff Pichardo, but was unable to force his hand behind his back. While Dooley was grasping Pichardo's wrist, Pichardo pulled his wrist towards his head and bit Dooley's finger. Dooley punched Pichardo in the face several times in an attempt to free his finger. Although Dooley eventually freed his hand, the finger had been severed.*fn2

Applegate continued to struggle with Pichardo. Believing that Dooley's finger was in his mouth, Applegate drew a collapsible baton and struck Pichardo in his back, shoulder, and head to force him to spit the finger out. Pichardo began spitting at Applegate, and continued spitting throughout the confrontation.

Applegate and another police officer eventually handcuffed Pichardo and removed him from the casino. Pichardo was taken to the hospital, where Applegate observed Pichardo spit at Officer Patrick Yarrow and his partner.

Pichardo was tried before a jury in April 2009. On May 1, the jury found Pichardo guilty on seven counts of the nine-count indictment. He was acquitted on the remaining two counts, throwing bodily fluids at Dooley and aggravated assault of Yarrow.

In July 2009, the trial judge granted Pichardo's application for substitution of new defense counsel. On August 27, 2009, Pichardo made a motion for a new trial. The trial judge denied the motion and proceeded to sentencing.

The judge determined that the facts supported the following aggravating factors: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the offense was committed against a police officer, N.J.S.A. 2C:44-1(a)(8); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The judge also found one mitigating factor: defendant has no history of prior criminal activity and has led a law-abiding life, N.J.S.A. 2C:44-1(b)(7).

Pichardo was sentenced to a seven-year term of incarceration on Count I, second-degree aggravated assault on Dooley, with eighty-five percent parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On Count III, third-degree aggravated assault on Applegate, Pichardo was sentenced to a consecutive three-year term of incarceration. He was sentenced to a one-year consecutive term on Count IV, fourth-degree aggravated assault by throwing bodily fluid on Applegate, and another one-year consecutive term on Count VI, the same offense with respect to Yarrow. Finally, Pichardo was sentenced to a three-year consecutive term on Count VII, third-degree resisting arrest. The remaining counts were merged. The aggregate term of incarceration was fifteen years.

The judge found that a consecutive sentence was warranted on Count III due to the separation of the offense in time and place from Count I. He held that Count VII also warranted a consecutive sentence because the crime, resisting arrest, was a separate offense against the criminal justice system as a whole. Finally, the judge concluded that N.J.S.A. 2C:12-13, which provides that "[a] term of imprisonment imposed for [the] offense shall run consecutively . . . to any other term imposed for another offense committed at the time of the assault," mandated that the sentences on Counts IV and VI be served consecutively.

This appeal followed.


Pichardo raises the following issues on appeal:




Pichardo argues that the trial judge's failure to charge the jury on self-defense with respect to the assault on Dooley requires reversal. He asserts that the evidence presented at trial raised the issue of self-defense, and that the trial judge should have charged it despite defense counsel's specific request that he not do so. We disagree.

At the charge conference, Pichardo's attorney specifically asked that "self-defense not be applied" to the second-degree aggravated assault charged in Count I, because Pichardo's defense on that count was based on his assertion that the biting that severed Dooley's finger was an involuntary action and that Pichardo was unconscious at the time. The trial judge agreed that charge would have "cut the heart out of one of the defense's primary theories."

As a result, self-defense was charged with respect to the other counts, but the judge instructed the jury that it was not applicable to Count I. Pichardo now argues that the trial judge erred in acceding to his attorney's request, and that his then attorney provided ineffective assistance in making the request in the first place.

In this case, the defense attorney specifically asked that the self-defense charge not apply to the first count. Where a party "urged the lower court to adopt the proposition now alleged to be error," Brett v. Great American Recreation, Inc., 144 N.J. 479, 503 (1996), this court will not ordinarily review that party's claim. Pressler & Verniero, Current N.J. Court Rules, comment 2.2 on R. 2:10-2 (2011). A "'defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). Ordinarily, to constitute "invited error," a party must have "urged," "beseech[ed]," "request[ed]," "induced" or "ask[ed] the court to take his [or her] proffered approach." Brett, supra, 144 N.J. at 503; State v. Corsaro, 107 N.J. 339, 346 (1987); Jenkins, supra, 178 N.J. at 358. That was certainly the case here.

In any event, a trial judge need not give a self-defense charge if it is inconsistent with a defendant's trial strategy. In State v. Perry, 124 N.J. 128 (1991), the defendant alleged on appeal that the trial court erred by failing to give an instruction on self-defense sua sponte. The Supreme Court held that "defendant did not request a self-defense charge. Under those circumstances in the face of non-compatible defense strategy, we cannot conclude that the trial court committed plain error in not charging self-defense sua sponte." Id. at 162.

In State v. Vasquez, 265 N.J. Super. 528, 550 (App. Div.), certif. denied, 134 N.J. 480 (1993), the defendant did not request a self-defense charge at trial, but argued on appeal that the failure to give a self-defense charge was plain error. We held that "[t]he trial court's failure to charge self-defense sua sponte did not amount to plain error. Defense counsel chose a strategy which the trial court appropriately decided not to interfere with. Any charge on self-defense would have prejudiced defendant and increased the likelihood of the murder conviction." Ibid. See also State v. R.T., 411 N.J. Super. 35, 52 (App. Div. 2009).

Here, of course, defense counsel had specifically requested that the charge not be given, so as not to undercut the defense that the act was involuntary. Consequently, we find no error in the trial judge's decision not to give a self-defense charge with respect to the aggravated assault charge involving Dooley.

We also find no merit to Pichardo's contention that he received ineffective assistance of counsel based upon his then attorney's decision not to pursue a dual defense with respect to the assault on Dooley. In effect, Pichardo now argues that the attorney should have sought to convince the jury that he was either unconscious, and therefore involuntarily bit Dooley, or that he deliberately bit Dooley in self-defense if the jury determined that he was not unconscious.*fn3

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 678, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987); State v. Castagna, 187 N.J. 293, 313 (2006); State v. Allegro, 193 N.J. 352, 366 (2008) (all holding that New Jersey applies the Strickland two-pronged test). In order to obtain relief based upon a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that counsel's deficient performance prejudiced his defense. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Under Strickland, "an ineffective assistance of counsel claim is made out upon proof that the representation is both deficient and prejudicial to the defendant. Counsel's representation is deficient if it falls 'below an objective standard of reasonableness.'" State v. Martini, 160 N.J. 248, 264 (1999) (quoting Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 693). The defective performance is prejudicial if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The Strickland two-prong standard was adopted by the Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), as the appropriate measure of effective assistance of counsel under Article I, Paragraph 10 of the New Jersey Constitution. See also Castagna, supra, 187 N.J. at 313; Allegro, supra, 193 N.J. at 366. When analyzing a claim of ineffective assistance of counsel, New Jersey courts follow the rule formulated by the United States Supreme Court in Strickland. Martini, supra, 160 N.J. at 265.

Defense counsel's decision to request that the self-defense charge not be given with respect to the assault on Dooley was a matter of trial strategy, aimed at presenting a defense consistent with the assertion that Pichardo was unconscious and that the bite was an involuntary action. Defense counsel argued, and the trial judge agreed, that a parallel assertion of self-defense would be inconsistent with Pichardo's primary defense. "Decisions as to trial strategy or tactics are virtually unassailable on ineffective assistance of counsel grounds . . . ." State v. Cooper, 410 N.J. Super. 43, 57 (App. Div. 2009) certif. denied, 201 N.J. 155 (2010). Defense counsel's actions were reasonable and cannot form the basis of an ineffective assistance claim.

Even if we were to find that defense counsel's approach rose to the level of ineffective assistance, we are satisfied that the decision was not prejudicial. First, the patent inconsistency between the two defenses would have undermined both of them. Second, the jury rejected Pichardo's claim of self-defense with respect to other counts of the indictment. There is nothing in the record to suggest that self-defense would have been any more successful if applied to the assault on Dooley, especially after Pichardo had testified that he was unconscious at the time.


Pichardo argues that his sentence is harsh and excessive because the trial judge did not properly weigh the aggravating and mitigating factors. Further, he contends that the imposition of consecutive sentences created a total term that shocks the judicial conscience, due in large part to a misapplication of the Yarbough factors. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

The "paramount" goal of the New Jersey Code of Criminal Justice is "'uniformity in sentencing.'" State v. Blackmon, 202 N.J. 283, 296 (2010) (quoting State v. Kromphold, 162 N.J. 345, 352 (2000)). "The goal of uniformity is 'achieved through the careful application of statutory aggravating and mitigating factors.'" Ibid. (quoting State v. Cassady, 198 N.J. 165, 179-80 (2009)).

"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).

Our review of sentencing decisions is relatively narrow and

is generally governed by an abuse of discretion standard. Blackmon, supra, 202 N.J. at 297 (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Blackmon, supra, 202 N.J. at 297 (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364.

Pursuant to N.J.S.A. 2C:44-5(a), "multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." The imposition of consecutive sentences must be justified by the criteria set forth in State v. Yarbough, supra, 100 N.J. at 643-44. See also State v. Hannigan, 408 N.J. Super. 388, 393 (App. Div. 2009). The judge must state on the record whether:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous[.] [Yarbough, supra, 100 N.J. at 644 (footnote omitted).]

In this case, the trial judge's findings as to aggravating and mitigating factors for Count I are well-supported by the record. He accepted and considered the fact that Pichardo is married and had previously been law-abiding. Because Pichardo sought to portray himself as a victim of police brutality, however, the judge found a lack of remorse and a failure to appreciate the gravity of his actions. We find no error in the judge's choice of aggravating factors or in his rejection of the additional mitigating factors proposed by Pichardo.

Under N.J.S.A. 2C:43-6(a)(2), the second-degree aggravated assault (Count I), which involved biting off Dooley's finger, allowed a sentence of imprisonment between five and ten years. The judge weighed three aggravating factors against one mitigating factor, and sentenced Pichardo to seven years imprisonment. This sentence does not shock the judicial conscience. Seven years is significantly below the maximum sentence.

Under N.J.S.A. 2C:43-6(a)(3), the sentencing range for the third-degree aggravated assault involving Applegate (Count III) was three to five years of imprisonment. However, because the grading of the offense under N.J.S.A. 2C:12-(1)(b)(5)(1) was premised on Applegate's status as a police officer, the judge's application of aggravating factor eight amounted to double counting. The same applies to the sentences on Count VII, resisting arrest by use of force, as well as the two fourth-degree crimes, purposefully throwing bodily fluids under N.J.S.A. 2C:12-13, (Counts IV and VI). We must, therefore, remand for resentencing on those counts.

At the resentencing, the trial judge should also reconsider the issue of consecutive sentencing. While he correctly noted that N.J.S.A. 2C:12-13 requires consecutive sentences for Counts IV and VI, we believe there should be a more detailed consideration of the Yarbough factors with respect to the other counts, particularly the decision to impose a consecutive sentence on Count VII, resisting arrest, after imposing a consecutive sentence on Count III.

Consecutive sentencing attempts to punish separate episodes of aberrant behavior, Yarbough, supra, 100 N.J. at 644, and requires an open analysis of spatial and temporal relationships. While resisting arrest and aggravated assault against a law enforcement officer do not merge at the time of sentencing, that is not dispositive in a Yarbough analysis. For Yarbough analysis purposes, the victims of resistance by violence were those upon whom the violence was physically inflicted: Dooley and Applegate. They were the parties present in space and time, which is the critical inquiry under Yarbough. An analysis of Yarbough factors (a), (b), (c), and (e) would appear to weigh against a consecutive sentence for Count VII, especially following the imposition of consecutive sentences for the assaults on Dooley and Applegate, which are supported by factors

(b) and (d).

We are particularly concerned that, in observing that "the

resisting feature of the defendant's conduct encompassed all of [the] police officers involved and erupted into separate episodes of resistance throughout the arrest," the judge took an approach that appears inconsistent with Yarbough factor (c): whether the crimes were "committed so closely in time and place as to indicate a single period of aberrant behavior." Yarbough, supra, 100 N.J. at 644. Pichardo's conduct would appear to be more aptly characterized as a single period of aberrant behavior. While we do not disagree with consecutive sentences for Counts I and III, which involved separate victims, we question the propriety of an additional consecutive sentence for Count VII and find the judge's explanation in that regard unpersuasive.

Consequently, in the process of resentencing on Counts III, IV, VI, and VII, the judge should carefully consider whether more than one additional consecutive sentence, beyond the two that are mandatory under N.J.S.A. 2C:12-13, is appropriate under Yarbough.

Affirmed in part; remanded for resentencing in part.

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