September 22, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE RIVERA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-02-0345.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 25, 2011 - Decided
Before Judges Fisher and Sapp-Peterson.
Following a jury trial, defendant was convicted of one count of attempted burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-1. The court granted the State's motion to impose a discretionary extended term as a persistent offender and sentenced defendant to a ten-year period of incarceration with a five-year period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, along with the appropriate fines and penalties.
On appeal, defendant raises the following points for our consideration:
THE COURT ERRED IN REFUSING COUNSEL'S REQUEST FOR A MISTRIAL AFTER ONE JUROR WAS DISQUALIFIED DURING THE COURSE OF DELIBERATIONS.
THE GRATUITOUS COMMENTS OF BOTH THE COURT AND A STATE'S WITNESS AS TO DEFENDANT'S MUGSHOT CLEARLY COMMUNICATED TO THE JURY THAT HE HAD A PRIOR CRIMINAL RECORD, THUS DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).
THE COURT ERRED IN DENYING COUNSEL'S REQUEST FOR A PRETRIAL WADE*fn1 HEARING.
THE COURT ERRED IN DENYING COUNSEL'S REQUEST TO CHARGE CRIMINAL TRESPASS AS A LESSER[-] INCLUDED OFFENSE OF BURGLARY.
THE TEN-YEAR EXTENDED TERM WITH A FIVE-YEAR PAROLE BAR IMPOSED ON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL APPLICABLE CIRCUMSTANCES.
We reject each of the points raised and affirm.
The underlying conviction stems from defendant's November 18, 2008 attempted burglary of the victim's home located in Jersey City. The victim was awakened by noises around 9:00 a.m. He went to a room where there was a window facing his backyard and saw someone attempting to open the window with paint brushes that he left on his back porch. The victim alerted his wife to call the police. He then dressed and exited his home onto his porch and, while standing there, saw a male run through his backyard, jump a fence, run through a neighbor's yard, and then run into the next yard.
The victim proceeded to run after the individual in the area of Westside and Sip Avenues. He ran for two or three blocks but did not see the person. He returned home to check on his wife and then ran to the corner of Logan and Freeman Avenues but still did not see the individual. Finally, when he went up Sip Avenue, he saw the individual, whom he identified at trial as defendant, standing in an alley on the side of a house.
The victim testified that the defendant appeared to be "trying to act normal" by doing something to an electric meter located where defendant was standing. The victim approached defendant, and when they were within two feet of each other defendant immediately remarked, "it wasn't me, it wasn't me." The victim asked defendant why he broke into his home, to which defendant responded that he was trying to break the window because he believed someone else was living in the home and that person owed him money. Defendant moved closer to the victim and said that he had gun. The victim tackled defendant, who was able to get up. Defendant removed his shirt and started to flee. The victim chased defendant to an apartment building. Police, who arrived shortly thereafter, were admitted to the apartment where defendant was believed to have entered. They started to search the apartment until the tenant asked them to leave, and they complied. The victim identified defendant from a second photo array the next day and police secured an arrest warrant. They found defendant at the same apartment two days later.
Forty-five minutes into deliberations, the court received a note from the jury advising that there was a juror who expressed the belief that she could never send someone to jail even if convinced that person was guilty. Defense counsel moved for a mistrial, subject to a determination by the court whether the jury could proceed to deliberate anew with an alternate juror seated. After personally interviewing the juror, the court released the juror and instructed the remaining jurors to determine whether they could commence deliberations anew, and when they advised the court that they could, the court seated an alternate juror and instructed the jury anew.
A mistrial is an extraordinary remedy that should be granted only to prevent a manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994) (citing State v. Lozada, 257 N.J. Super. 260, 277 (App. Div. 1992)), certif. denied, 139 N.J. 442 (1995). A mistrial is warranted only when an error cannot be remedied by an instruction to the jury or some other curative action. State v. Winter, 96 N.J. 640, 646-47 (1984). A denial of a mistrial motion is reviewed on appeal under an abuse of discretion standard. Id. at 647 (noting that a mistrial is "peculiarly within the competence of the trial judge, who 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").
Defendant's contention that the court erred in denying his motion for a mistrial is based purely upon speculation. He contends that "all signs point[ed] to the conclusion that deliberations had proceeded to a critical point before the substitution of the juror[.]" Defendant, however, fails to point to any specific facts to support this contention. For example, forty-five minutes had elapsed before the jury sent a note to the court regarding the juror. There is no indication that deliberations had progressed to the point from which it could reasonably be inferred that it had reached a determination of defendant's guilt or innocence. State v. Jenkins, 182 N.J. 112, 131-32 (2004). While the court did advise the jury that if it had made up its mind, then it could not continue in its deliberations, there is nothing in the record to suggest that the jury's subsequent disclosure to the court that it could begin its deliberations anew was influenced by the court's statement.
Moreover, once the jury advised the court it could begin its deliberations anew, the court carefully instructed the jury on the manner in which the new deliberations would proceed:
[Y]ou must start your deliberations over again. I should say you are a new jury now. Once you replace one person[,] it's as if you started over again.
The . . . alternate juror has no knowledge of any earlier deliberations. Consequently, the new deliberating juror must start over at the very beginning of the deliberations. Each member of the original deliberating jury must set aside and disregard whatever may have occurred and anything which may have been said in the jury room following my instructions to you.
You must give no weight to any opinion expressed by Juror No. 12 during the previous deliberations. Okay. And . . . it is your duty as jurors to consult with one another, to deliberate with a view of reaching an agreement if you can do so without violence to your individual judgments. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.
Although the record does not specify how long they deliberated, it does indicate that two matters were handled before the jury came back in. Consequently, we are satisfied the trial judge did not abuse his discretion by denying defendant's motion for a mistrial, he properly removed juror number twelve, and he carefully determined that deliberations could begin anew.
Defendant next contends the court erred when it denied his request to charge criminal trespass as a lesser-included offense of burglary. We disagree.
Because defendant "fail[ed] to object contemporaneously to [the] jury charge," the "plain error standard applies." State v. Nero, 195 N.J. 397, 407 (2008). "'[P]lain error requires demonstration of legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). In the context of a court's jury charge, "'any finding of plain error depends on an evaluation of the overall strength of the State's case.'" Ibid. (quoting Chapland, supra, 187 N.J. at 289).
Where a defendant has not requested an instruction of a lesser-included offense, "a trial court has an independent obligation to instruct [the jury] on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361; State v. Singleton, 290 N.J. Super. 336, 341-42 (App. Div. 1996). The judge "has no duty to meticulously sift through the entire record to uncover some facts that might support a lesser included offense instruction." Singleton, supra, 290 N.J. Super. at 342 (internal quotation omitted).
A person is guilty of burglary if "with purpose to commit an offense therein or thereon he: . . . enters a . . . structure" without "license or privilege to enter." N.J.S.A. 2C:18-2(a). Attempted burglary occurs when "acting with the kind of culpability otherwise required for commission of the crime, he . . . [p]urposely does . . . anything which . . . is an act . . . constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." N.J.S.A. 2C:5-1(a)(3). Criminal trespass occurs when "knowing that he is not licensed or privileged to do so, he enters or surreptiously remains in any . . . structure . . . ." N.J.S.A. 2C:18-3a. This is a fourth-degree offense if committed in a dwelling, N.J.S.A. 2C:18-3, and a person can be charged with attempted criminal trespass. See State v. Rambo, 401 N.J. Super. 506, 525 (App. Div.), certif. denied, 197 N.J. 258 (2008), cert. denied, __ U.S. __, 129 S. Ct. 2165, 173 L. Ed. 2d 1162 (2009).
Here, the trial court did not err by failing to instruct the jury on the lesser-included offense of criminal trespass because the record does not "clearly indicate" that the jury could convict defendant of criminal trespass while acquitting him of attempted burglary. While the victim testified that defendant told him he was looking for someone who owed him money and believed that person lived in the home he was attempting to enter, this is not evidence clearly indicative of an intent to commit criminal trespass.
The remaining points raised by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.
Before the State's witness disclosed that the source of the photograph of defendant was a mug shot, the court interjected and asked whether the officer obtained defendant's photograph from "[p]ictures in [his] establishment[.]" The court, in its final instructions to the jury, admonished the jury "not to consider the fact that the agency obtained a photograph of the defendant as prejudicing him in any way[,]" and noted that law enforcement agencies obtain photographs through a variety of sources, providing examples such as passports, alcoholic beverage identification cards and government employment. We would presume that the jury understood and followed this instruction. See, e.g., State v. Burris, 145 N.J. 509, 531 (1996) (citing State v. Manley, 54 N.J. 259, 270 (1969) (stating, with regard to proper use of evidence, "the Court presumes that juries will understand and abide by the court's instruction")).
Insofar as the denial of defendant's request for a pre-trial Wade hearing, defendant was required to make a "threshold showing of some evidence of impermissible suggestiveness" in the photo array. State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). That threshold showing was not established here. The photo display package from the Jersey City Police Department contained (1) a photo display instruction form which was read to and signed by the victim and the detective witnessing the identification process,
(2) a photo identification form that indicated the victim selected defendant's photograph from six photos, and (3) a photo display report describing the identification process. Additionally, the court properly instructed the jury on the factors it must consider in order to determine the reliability of identification evidence, including that the identification evidence must be critically examined and that "identifications even made in good faith may be mistaken."
A trial judge's determination whether to grant or deny a Wade hearing is a "matter of discretion" based on "the totality of the circumstances." Ortiz, supra, 203 N.J. Super. at 522. We find no such abuse here in the denial of defendant's request for a Wade hearing, given the absence of a threshold showing of an impermissibly suggestive procedure. Moreover, the victim's contact with defendant was not fleeting. After first seeing defendant through the window of his home where defendant attempted to enter at 9:00 a.m., the victim pursued defendant through the neighborhood, engaged in a brief conversation with defendant before tackling him, and resumed the chase to the location where defendant was arrested days later. Thus, the risk of misidentification of defendant resulting from the photo array was greatly diminished.
Finally, defendant contends his ten-year custodial sentence with a five-year period of parole ineligibility was excessive. We disagree.
Appellate review of a sentence must be "careful and vigorous," but we will not substitute our judgment for that of the sentencing judge. State v. Kirk, 145 N.J. 159, 175 (1996). The test is not whether we would have imposed a different sentence, but rather "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989). A trial judge is accorded "wide discretion" to impose a sentence, provided it is within the statutory framework, and as a reviewing court, we must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). We are obliged, however, to insure that the sentencing guidelines set forth in N.J.S.A. 2C:44-1a and b have been met and the sentence is not "'clearly unreasonable so as to shock the judicial conscience.'"
Id. at 182 N.J. at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
Attempted burglary is a third-degree crime for which a custodial sentence between three to five years is mandated if a term of imprisonment is imposed. N.J.S.A. 2C:43-6a(3). Defendant, however, met the criteria for imposition of an extended term pursuant to N.J.S.A. 2C:44-3a: (1) he was over the age of twenty-one; (2) defendant had been convicted on at least two separate occasions of two crimes committed at different times - in fact, between 1987 and 2006, defendant had been convicted of eight indictable offenses; and (3) a number of those convictions occurred within ten years of the underlying conviction. Further, the court appropriately considered the aggravating and mitigating factors under N.J.S.A. 2C:44-1a and
b. Its conclusion that there were no mitigating factors is supported by the record. Consequently, the sentence imposed does not shock the judicial conscience. Roth, supra, 95 N.J. at 364-65.