February 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DIONYS RIVAS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-08-0685.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2010 - Decided Before Judges Yannotti and Espinosa.
Defendant appeals from his convictions and sentence for conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, and theft from a person, N.J.S.A. 2C:20-2(b)(2)(d). We affirm.
On the evening of April 27, 2005, Honorio Delgado was walking to a train station in North Plainfield. He intended to take the 9:30 or 9:36 p.m. train. Approximately three blocks from the station, two black males accosted him. The bigger male, who was wearing a ski mask, grabbed his cell phone. The second male, who was "very skinny," then took the phone from the bigger male.
Evidence was introduced at trial that, in May 2005, defendant was five feet, eleven inches tall, had a medium, stocky build, and weighed one hundred ninety pounds. The juvenile charged with him in these assaults, B.W., was approximately five feet, six inches tall, had a small, thin build, and weighed one hundred forty pounds.
Delgado, who was over sixty years old, tried to defend himself. The bigger male pushed him, causing Delgado to stumble backwards, and when Delgado attempted to retrieve his phone a second time, the bigger male showed him something pistol-like in his belt. The bigger male then reached into Delgado's pocket and took his insurance cards and money. The two males then rode away on their bicycles.
Delgado reported the incident on the following morning. Although he did not see his attacker's face, Delgado said at trial that he recognized defendant "[b]y the body."
At approximately 9:30 p.m. on that same evening, Maximo Castro was walking home to his son's apartment from his daughter-in-law's restaurant in Plainfield. Castro, who was also over sixty years old, was carrying a pineapple.
Officer Enrico Perrone, who was working undercover for the Somerset County Prosecutor's Office Narcotics Task Force in an unrelated investigation, was patrolling the area in an unmarked car driven by Sergeant Federico. Officer Perrone observed defendant standing over Castro, who was on the ground on hands and knees. Defendant was holding Castro's left arm and appeared to be trying to help him up. Officer Perrone also observed B.W., sitting on a bicycle, and saw a pineapple rolling on the street.
At the approach of the unmarked vehicle, defendant and B.W. rode away but they returned when Perrone yelled out to them. Perrone asked what was wrong with Castro. Defendant replied that he thought Castro was drunk and that he and B.W. had been trying to help him up. Castro got up and began speaking in slurred Spanish. As Perrone turned his attention to Castro, defendant and B.W. rode away. Castro was very disoriented but did not smell of alcohol and did not show any obvious signs of injury. Although Castro was very disoriented, police questioned him and he stated that he had been attacked by three or four "black guys." The police then transported Castro to a hospital for treatment.
At approximately 9:42 p.m. that evening, Perrone called Sergeant William Speck, who was familiar with defendant. Speck called defendant, who essentially repeated what he had told Perrone at the scene.
Two days later, Lieutenant Gerard Clyne of the North Plainfield police department observed defendant and other juveniles standing near a school, holding beer cans. He detained the juveniles. A search of the area produced a "cylindrical wooden object like a club or bat," that was preserved as evidence possibly relevant to another, unrelated investigation.
On May 9, 2005, defendant met Speck to give a taped statement of the account he had given on April 27.
Speck went to defendant's home with another officer on May
18. A Spanish-speaking officer, Detective Alejandro Kuga, called defendant's mother, Ludvina Jimenez, so that the officers could question defendant. They drove defendant to the police station, where they waited in an interview room for Jimenez. Upon her arrival, Kuga told her that they wanted to talk to her son about an assault and that someone was in the hospital. In her presence, Miranda*fn1 warnings were read to defendant from a form that listed the warnings in both English and Spanish. After each right was read, defendant and Jimenez confirmed their understanding verbally and by initialing the form. Defendant and Jimenez signed the Miranda waiver form at 6:45 p.m.
Speck began to question defendant and Kuga translated the conversation to Jimenez. Defendant initially denied any involvement in the incident with Castro but then became upset and asked if his mother could leave the room. Kuga advised Jimenez that she had a right to remain in the room and that if she chose to leave, she would have to sign a parental waiver form, which he read and translated to defendant and Jimenez. Both signed the form. Kuga and Jimenez then waited in a nearby room for approximately thirty to forty-five minutes.
As defendant and Speck discussed the Castro incident, defendant began to cry. He told Speck that he and B.W. had ridden by Castro on their bicycles and that once they got close to him, defendant struck him once "in the head with a club or a bat that he kept in the sleeve of his jacket. . . ." When Speck asked him why he had struck Castro, defendant stated that "he had done it once before to someone else using a hammer and that [B.W.] didn't believe him." He stated that B.W. dared him to hit someone again. Speck showed defendant a picture of the bat recovered by the police at the school on April 29. Defendant stated that his friend, Tenzin Baro, had given him the bat and that he had used it to strike Castro in the head.
Defendant also told Speck that, shortly before the incident with Castro, he and B.W. had approached a man talking on his cell phone. B.W. pretended that he had a gun under his shirt to frighten the man and took the cell phone from the man while he was talking on it.
Speck asked defendant to repeat what he had said in a taped statement. Speck confirmed on the record that defendant and Jimenez had been advised and understood their rights. Defendant repeated his admissions in the taped statement, which was taken at 8:18 p.m. and lasted eighteen minutes.
On the following day, B.W. also identified the photo of the bat as the weapon defendant had used to strike Castro.
Although Castro had appeared to be recovering from his injury, he died on May 29, 2005. The cause of death reported by the medical examiner was blood clots that developed as complications of the blunt force injuries to his head.
B.W. testified at trial pursuant to a plea agreement. He stated that he was thirteen years old on April 27. After fighting with his stepfather that evening, he told defendant that he needed money because he needed somewhere to live. He testified that defendant responded, "Let's make some robberies." B.W. stated that they then rode around on their bicycles to "scare people to get money." When they saw Delgado, they rode their bikes up to him and defendant asked him for money. Delgado stated that he had none. According to B.W., defendant then snatched Delgado's cell phone and gave it to him. Delgado ran away and they got back on their bikes and rode off.
B.W. testified that they subsequently encountered Castro. B.W. asked defendant if they were going to get him and defendant responded in the affirmative. According to B.W., defendant asked Castro for five dollars. Castro said he had no money. Defendant slipped a bat halfway out of his sleeve. Castro then gave B.W. five dollars. It looked as though Castro had more money and defendant made an effort to get more. Castro tried to run away but defendant grabbed him by his shirt and hit him three times in the head with the bat.
Tenzin Baro testified that he had given defendant a small wooden bat, which defendant often kept hidden in his sleeve. Baro also testified that on April 28, 2005, defendant told him that he and B.W. had hit an "old guy" over the head with the bat on the previous evening after asking him for money.
Defendant testified at trial and disavowed the account he gave in the May 18 statement. He stated that Speck forced him to give that account and that the details had been manufactured by the police.
Defendant stated that on the evening of April 27, he was with several friends, including B.W. and Noel Pyne, who he described as a lieutenant in the Bloods gang. Defendant and B.W. were riding their bicycles and Pyne was standing on pegs attached to B.W.'s bicycle. He said that after he failed to steal a hat at Pyne's instruction, B.W. and Pyne derided him. They then came across Delgado and, when either B.W. or Pyne directed him to take Delgado's cell phone, he complied because he felt that he had to prove that he was "no punk." Defendant stated that he refused Pyne's direction to tell Delgado to give them more money and rode away. He said that Pyne was wearing a mask but that he did not see Pyne or B.W. with any weapons.
Defendant then stated that when they came across Castro, B.W. asked Pyne if he was going to "get him." According to defendant, Pyne stated that he was "going to teach [defendant] how it's done." Defendant stated that Pyne followed Castro until they neared a driveway and then hit him with a black handled silver hammer. Castro fell, and when he tried to get up, Pyne hit him a second time. Pyne fled the scene when an unknown male driving a white car stopped and got out of his car.
Defendant testified that he never intended to rob or hit Castro, that he never agreed to such an arrangement with B.W. or Pyne and that, after Pyne fled, he felt sorry for Castro and tried to help him until the police arrived. Defendant denied discussing the incident with Baro. However, he admitted bragging about it to two friends because "kids in the street" praised it and thought it was "cool." He also admitted having a bat which he discarded when the police observed him and his friends drinking near the school, but denied having the bat with him on April 27.
On May 19, 2005, defendant was charged as a juvenile with acts which, if committed by an adult, would have constituted offenses enumerated in N.J.S.A. 2A:4A-26a(2)(a). Following a juvenile waiver hearing, the Family Part referred the matter to the Criminal Part. Defendant was indicted for knowingly or purposely causing the death of Maximo Castro, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); causing the death of Castro during the commission or attempted commission of a robbery, N.J.S.A. 2C:11-3(a)(3) (count two); the robbery of Castro with the aid of a deadly weapon, N.J.S.A. 2C:15-1 (count three); the robbery of Honorio Delgado by threatening the use of a deadly weapon, N.J.S.A. 2C:15-1 (count four); the possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and conspiring, contrary to N.J.S.A. 2C:5-2, with another juvenile, B.W., to commit a first degree robbery, N.J.S.A. 2C:15-1 (count six).
Defendant's motion to suppress his statement was denied. The jury convicted defendant of theft from the person of Honorio Delgado as a lesser included offense of count four and of conspiracy to commit robbery (count six). He was sentenced on count six to eight years incarceration subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with a three year term of parole supervision, a concurrent term of four years on count four, and appropriate fines and penalties.
In this appeal, defendant presents the following issues for our consideration:
WAIVER OF THE JUVENILE MATTER TO ADULT COURT WAS ERRONEOUS.
THE TRIAL COURT ERRED AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS BY PERMITTING BEFORE THE JURY STATEMENTS OBTAINED FROM THE JUVENILE DEFENDANT.
UNNECESSARY AND UNFAIRLY PREJUDICIAL GRAPHIC PHOTOS DEPRIVED DEFENDANT OF A FAIR TRIAL.
THE TRIAL COURT DEPRIVED DEFENDANT OF A FAIR TRIAL BY PERMITTING TESTIMONY REGARDING OTHER CRIMES ALLEGEDLY COMMITTED (PLAIN ERROR). POINT V
A MISTRIAL SHOULD HAVE BEEN DECLARED AFTER ONE OF THE ALLEGED VICTIMS, WHEN PRESSED ON WHETHER HE COULD IDENTIFY DEFENDANT AS THE PERPETRATOR, BEGAN CRYING AND TOLD THE JURY, "MY LIFE IS IN DANGER." POINT VI
COMMENTS BY THE PROSECUTOR AND THE TRIAL JUDGE WERE PREJUDICIAL AND CUMULATIVELY DENIED DEFENDANT A FAIR TRIAL.
DEFENDANT'S CONVICTION FOR CONSPIRACY MUST BE REDUCED TO A THIRD-DEGREE CRIME (PLAIN ERROR). POINT VIII
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
After carefully reviewing the record and briefs, we are satisfied that none of these arguments have any merit.
We turn first to defendant's argument that the court erred in waiving his case to adult court. Pursuant to N.J.S.A. 2A:4A-26, the Family Part is required, upon motion of the prosecutor, to waive a case to the Law Division if there is probable cause to believe that the juvenile committed a delinquent act which would constitute one of the offenses enumerated in N.J.S.A. 2A:4A-26a(2)(a) if committed by an adult and the juvenile was at least fourteen years old at the time of the charged delinquent act. It is undisputed that defendant was charged with offenses enumerated in the statute.
The evidence presented by the State to support its motion included the following: testimony from Sergeant William Speck that he sought out defendant on May 18 because he had received information from defendant's acquaintances that defendant had hit Castro; defendant's second statement to police on May 18; and B.W.'s taped statement to police on May 19. In his May 18 statement, defendant admitted that he had struck Castro on the side of the head with a small bar in response to a dare from B.W. He also admitted approaching Delgado with B.W. and that, in that encounter, B.W. feigned having a gun and snatched Delgado's cell phone. B.W. admitted that he and defendant had planned to commit robberies on the night of April 27, 2005, and that defendant struck Castro three times in the head after demanding money from him.
Defendant challenges the adequacy of the proof presented at the waiver hearing, specifically arguing that there was insufficient evidence of his age; that his statements to police were taken under questionable circumstances, and that no physical evidence corroborated the incriminating testimony provided by B.W. In support of his argument regarding the reliability of his own statement, defendant presented Clemente Loward, who testified that, on the date of the statement relied upon by the State, defendant was at home, drinking beer with friends for several hours.
To sustain its burden as to the age of defendant at the time of the delinquent act, the State presented defendant's birth certificate from the Dominican Republic, listing his date of birth as October 18, 1988. In addition, an administrator at the high school where defendant was a student testified as to the documents necessary for enrollment at the school and that, according to defendant's enrollment files, the school reviewed an original birth certificate from the Dominican Republic that reflected the same date of birth. The trial court concluded that these records were sufficient to establish defendant's age, which was sixteen years old at the time of the attacks. We agree.
Defendant also argues that the probative value of his statements and the testimony given by B.W. was insubstantial because his statements were given under "questionable" circumstances and B.W.'s testimony was uncorroborated by physical evidence. However, while such circumstances might provide a basis for the ultimate factfinder to find reasonable doubt as to defendant's guilt, it was not the trial court's role to weigh the evidence to determine actual guilt. State v. R.G.D., 108 N.J. 1, 16 (1987); State ex rel. T.M., 412 N.J. Super. 225, 230 (App. Div. 2010).
The trial court's sole function was to determine whether the evidence was sufficient to support "a well-grounded suspicion or belief that an offense has taken place and that [the juvenile] was a party to it." Ibid. (quoting State ex rel. A.T., 245 N.J. Super. 224, 227 (App. Div. 1991)). Moreover, even if there were constitutional infirmities to defendant's statements or other evidentiary obstacles to their admission at trial, the court would have been permitted to consider the statements in reaching its conclusion as to probable cause. See State ex rel. B.T., 145 N.J. Super. 268, 273 (App. Div. 1976), certif. denied, 73 N.J. 49 (1977).
We are satisfied that the trial court correctly concluded that the evidence presented required a waiver of jurisdiction to adult court.
Defendant argues that his May 18 statement to the police should have been suppressed because the State failed to prove that it was knowingly, intelligently and voluntarily given. When reviewing the admissibility of confessions by juveniles in custody, we consider the totality of circumstances. State v. Presha, 163 N.J. 304, 308 (2000).
[T]he root of the inquiry is whether [the juvenile's] will has been overborne by police conduct. In determining whether a suspect's confession is the product of free will, courts traditionally assess the totality of circumstances surrounding the . . . interrogation, including such factors as the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved. [Id. at 313 (internal quotation marks and citation omitted).]
As evidence of the infirmity of his statement, defendant states he was sixteen years old; he spoke in Spanish; he had been drinking that afternoon; he did not understand the difference between a burglary and a robbery; and that his mother was not present at the time he made the statement. He also notes that he was unaware that he would ultimately face a murder charge at the time he gave the statement because Castro had not died.
It is undisputed that defendant was advised of his rights in Spanish pursuant to Miranda, supra, in the presence of his mother. Both defendant and his mother stated they understood the rights read to them from the Miranda form and defendant's mother gave her permission for the police to question defendant. In the tape of defendant's May 18 statement, Sergeant Speck repeats defendant's statement that he would be more comfortable speaking without his mother present. It was explained to defendant's mother in Spanish that by signing a parent guardian waiver, she was giving the police permission to speak to defendant without her being present. She acknowledged that and left the room. At the hearing conducted by the trial court, defendant conceded that he had asked for his mother to leave.
In Presha, the Supreme Court recognized the "special significance" of the parent's role when a child faces questioning by police to assist the child in the exercise of his or her constitutional rights. Id. at 314-15. Although a parent's absence should be considered "a highly significant factor" to be given "added weight when balancing it against all other factors," Id. at 315, it is not a dispositive factor and is still subject to a consideration of the totality of the circumstances. In concluding that the juvenile's will was not overborne, the Court cited circumstances strikingly similar to those present here: the juvenile was sixteen years old and familiar with the criminal process, his parent was present at the outset of the questioning, and it was his desire to be questioned without a parent present. Id. at 318. Although defendant now argues that police failed to encourage defendant's mother to remain, they were under no obligation to do so and we are not inclined to impose such an obligation upon them under the circumstances here.
Defendant also argues that, because Castro had not died and was actually recovering at the time of his statement, he lacked information indispensable to a knowing and intelligent waiver of his rights. However, unlike the authorities relied upon by defendant, this was not a case in which critical information was known to and concealed by the police. See State v. O'Neill, 193 N.J. 148 (2007); State v. A.G.D., 178 N.J. 56 (2003).
As to defendant's claims regarding his capacity to comprehend the situation, the trial court rejected defendant's contention that he was impaired by alcohol, based upon its own review of the taped statement. The court noted, "I've heard him speak on tape. He is coherent, alert, understood what was being said, responsive." Indeed, there were instances in the transcript where defendant corrected Sergeant Speck and volunteered details that cast him in a more favorable light, such as when he corrected Speck to state that he had only hit Castro once, lightly, rather than multiple times.
We are satisfied the trial court's determination that defendant's statement was given knowingly, intelligently and voluntarily was amply supported by the evidence.
In Point III, defendant argues that the trial court abused its discretion in admitting autopsy photographs of Castro. This argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.
"It is well established that a reviewing court grants substantial deference to the evidentiary rulings of a trial judge." Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 319 (2006); See also State v. Morton, 155 N.J. 383, 453 (1998); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). The trial court conducted a hearing pursuant to N.J.R.E. 104 and made specific findings regarding the admissibility of the photographs. We are satisfied that the court did not abuse its discretion in admitting the photographs. Moreover, it is evident that defendant suffered no prejudice from the admission of these photographs since he was acquitted of all charges relating to Castro.
In Points IV and VII, defendant presents issues that were not raised in the trial court. Defendant argues in Point IV that the court erred in permitting testimony regarding his involvement in another assault and, in Point VII, that his conviction for conspiracy to commit a robbery must be reduced to a third-degree offense. Because this court does not entertain exceptions raised for the first time on appeal, State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), our review is limited to a search for error "of such a nature as to have been clearly capable of producing an unjust result." Rule 2:10-2. See also State v. Nesbitt, 185 N.J. 504, 516 (2006). We are satisfied that neither of these issues meets that standard.
In his statement to the police, defendant stated that he was motivated to strike Castro because B.W. did not believe that he was "with a group of guys that struck a guy on the head with a hammer" on a prior occasion. When Sergeant Speck testified at trial about defendant's admissions as to why he struck Castro, he stated, Well, he had told me that he had done it once before to someone else using a hammer and that [B.W.] didn't believe him and . . . said he would like to see that happen again. So that's why he did it.
Although the officer's testimony specified that defendant had wielded the hammer rather than being present when an unidentified member of his group struck the prior victim, there was no objection to this testimony. Sua sponte, the trial court raised the N.J.R.E. 404(b) character of the testimony and the appropriateness of a limiting instruction. At defense counsel's request, the resolution of this issue was delayed to the following morning to give him an opportunity to review the evidence and the standard limiting charge before taking a position.
On the following morning, defense counsel told the court that he thought a limiting instruction would be inappropriate and that one might "trigger an inference in the jury's head." The trial court concluded that, notwithstanding defense counsel's theory of the case, the "information about striking a guy in the head is obviously a clear prior bad act" and that he was "compelled to give a [N.J.R.E. 404(b)] type instruction." The court gave the appropriate limiting instruction but, at counsel's request, waited to give the instruction until after cross-examination of the witness was completed.
The determination whether such prior bad act evidence is properly admissible is guided by the four-part test set forth in State v. Cofield, 127 N.J. 328, 338 (1992):
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
In the absence of any objection by defense counsel, the court was denied an opportunity to conduct such an analysis to determine the admissibility of the evidence provided by Sergeant Speck before it was offered. After the fact, the court observed that the evidence was relevant to the material issue of motive and intent; that the act of striking someone in the head was similar in kind; that the evidence of the other act was clear and convincing as it was an admission from the defendant to the officer; and that the evidence was indeed probative of defendant's motive. We are satisfied that the introduction of this evidence did not have the clear capacity to bring about an unjust result and that, indeed, any possible prejudice to the defendant was adequately addressed by the court's limiting instruction.
We next address the issue defendant raises in Point VII. "[C]onspiracy is a crime of the same degree as the most serious crime which is the object of the conspiracy[.]" N.J.S.A. 2C:5-4(a). This standard for the grading of conspiracy offenses reflects a recognition that there may be more than one object for a conspiracy and that the object of a conspiracy may not be fulfilled. The Legislature thus explicitly directed that the grading of the conspiracy offense does not turn on the seriousness of the crime actually committed but, rather, on the most serious crime that is the object of the conspiracy. Accordingly, the fact that defendant was convicted of the lesser-included offense of theft from a person poses no obstacle to his conviction for a second-degree conspiracy to commit a robbery.
Further, in response to the jury's query whether conspiracy can only be applied to theft from the person, the trial court gave accurate instructions regarding the law. Defendant did not object to the adequacy of the instructions at trial and does not challenge the substance or adequacy of those instructions on appeal.
We are satisfied that the jury's verdict is consistent with both the applicable law and the evidence presented at trial. Defendant's argument now that the jury would not have convicted him of conspiracy to commit robbery if it had been given the option to find him guilty of conspiracy to commit theft from a person is, at best, speculative. Therefore, there was no error here that was clearly capable of producing an unjust result.
During the course of re-direct examination, Delgado gave a non-responsive answer to a question posed by the prosecutor in which he tearfully stated that his life was in danger. The court immediately instructed the jury to disregard the comment and brought counsel to sidebar.
Defense counsel moved for a mistrial and further argued that any curative instruction would only magnify the prejudice from Delgado's comment. The court denied the motion and proceeded to instruct the jury further:
Jury, I sustained the objection to . . . [Delgado's] response. . . . The question was appropriate but the response is not in response to the actual question that . . . was posed by the prosecutor. And I directed you to disregard the comment that was made by the witness as not appropriate, not responsive to the question. I think it is fair to say that the witness is a bit stressed in dealing with being a witness in the case. But the comment that was made is not appropriate . . . [and should not be] considered by the jury in your deliberations.
The court then polled the jury individually and each juror responded that he or she would follow the court's instruction.
In Point V, defendant argues that the trial court erred in denying the motion for a mistrial and that the curative instruction was insufficient to alleviate the harm caused.
A trial court "should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997); see also State v. Thompson, 405 N.J. Super. 76, 83 (App. Div. 2009). Because the trial court "has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting," State v. Winter, 96 N.J. 640, 647 (1984), an appellate court "should defer to the decision of the trial court . . . [and] will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice." Harvey, supra, 151 N.J. at 205. See also State v. Kueny, 411 N.J. Super. 392, 403 (App. Div. 2010); Thompson, supra, 405 N.J. Super. at 83 (App. Div.), certif. denied, 199 N.J. 133 (2009).
We are satisfied that the trial court did not abuse its discretion here; that the curative instruction appropriately addressed the perceived prejudice in Delgado's unsolicited comment and that no manifest injustice resulted.
In Point VI, defendant alleges that certain comments by the trial court and the prosecutor were prejudicial and cumulatively denied him a fair trial. We are satisfied that this argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.
There was no objection at trial to either the trial court's accurate instruction to the jury that this was not a death penalty case or the prosecutor's reference to a "ledger" to describe the evidence to support the State's and defendant's version of the facts. "Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Timmendequas, 161 N.J. 515, 576 (1999) (citations omitted); see also State v. Echols, 199 N.J. 344, 360 (2009). Neither of the comments now challenged meets the applicable standard of plain error. R. 2:10-2.
Defendant also argues that various comments by the prosecutor were improper because they shifted the burden of proof to defendant, constituted improper vouching for the credibility of witnesses for the State, and expressed a personal belief in defendant's guilt. These challenges lack any merit.
Prosecutors are "expected to make vigorous and forceful closing arguments to juries," State v. Frost, 158 N.J. 76, 82 (1999), and "are afforded considerable leeway in that endeavor." State v. Jenewicz, 193 N.J. 440, 471 (2008). In this case, the credibility of all the witnesses, including the defendant, was central to the jury's determination. It was, therefore, entirely appropriate for both the prosecutor and defense to focus upon inconsistencies, corroborative evidence and other issues relevant to credibility. In addition, our review of the prosecutor's comments "must also take into account defense counsel's opening salvo." State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (quoting United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985)), certif. denied, 130 N.J. 393 (1991). In this case, defense counsel's summation included a spirited argument that the jury should reject the testimony of the State's witnesses.
To justify a reversal, the prosecutor's comments "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right" to a fair trial. Timmendequas, supra, 161 N.J. at 575 (citing State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)) (internal quotations omitted). Even if all the comments now challenged are accumulated, they fall far short of the standard of "conduct . . . so egregious that it deprives the defendant of a fair trial" necessary to establish plain error. State v. Loftin, 146 N.J. 295, 386 (1996); see also State v Wakefield, 190 N.J. 397, 453 (2007); Frost, supra, 158 N.J. at 83.
Finally, defendant challenges his sentence as excessive. We review the sentencing decision with deference and will affirm the sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
In stating the reasons for sentence here, the court identified three aggravating factors: the likelihood that the defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the need to deter the defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9); and the fact that the offense was committed against a person who defendant knew or should have known was 60 years of age or older, N.J.S.A. 2C:44-1(a)(12). Defendant argues that the trial court's explanation for these findings was insufficient and further, that aggravating factor (12) should not have applied because the ages of the victims were "already part and parcel of the offenses themselves." Defendant was not, however, charged or convicted of any offense in which the age of the victim was an essential element. We are satisfied that there was adequate support in the record for the court's findings and that the court's explanation was sufficient to merit our deference.
Defendant also contends that mitigating factors also should have been applied. However, the only allusion to a mitigating factor is to defendant's youth, which, in and of itself does not constitute a mitigating factor.*fn2 This is not, therefore, a case in which the court failed to take into consideration a mitigating factor identified in N.J.S.A. 2C:44-1(b) that was supported by the evidence in the case. See State v. Dalziel, 182 N.J. 494, 504-05 (2005).
We therefore conclude that defendant's challenges to his conviction and sentence lack any merit.