June 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AGIM GJONBALAJ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-09-1595.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 27, 2012
Before Judges Baxter, Carchman and Maven.
Defendant Agim Gjonbalaj appeals from his February 16, 2010 jury conviction of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1).*fn1
The judge sentenced defendant to ten years of imprisonment with an eighty-five-percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant challenges the trial court's denial of his motion for judgment of acquittal, as well as the trial court's decision to sentence defendant to the statutory maximum. Defendant also, for the first time on appeal, asserts that the trial court did not clearly instruct the jury regarding accomplice liability and that the jury's verdict was against the weight of the evidence. We affirm.
On the morning of November 7, 2007, Michael Marro, Jr., was found dead in his Jersey City apartment. Marro's head was bloodied, and the apartment was in considerable disarray. A safe was sitting immediately behind the front door, and broken glass and broken wine bottles were strewn about. At trial, Assistant Medical Examiner Dr. Lyla Perez opined that the cause of death was blunt force trauma as well as a gunshot wound to the head. Marro's injuries included abrasions and contusions to his face, chin, forehead, ear, back, and shoulder; bleeding inside the scalp; and a Y-shaped laceration to the forehead indicating Marro had been struck with an object.
Hudson County detectives and crime scene investigators collected various evidence from the scene, including a partially-burnt candle found on the living room floor, as well as swabs for blood stains and biological evidence. Samples were taken from, among other places, the outside door handle, the hallway closet door, the hallway, a sliding glass door, the television and the glass table top, though not all of these samples were analyzed. Theresa Nezezon, a forensic scientist with the New Jersey State Police, concluded that the swab from a blood stain on the outside door handle of Marro's apartment matched defendant's DNA profile.
The State elicited at trial the fact that certain items had been seized from Zia Berisha, Gjonbalaj's co-defendant, when Berisha was arrested following a motor vehicle stop at approximately 11:40 p.m. on November 6, 2007, the night before Marro's body was found. These items included: Berisha's clothing, upon which were blood stains and candle wax, as well as four wrist watches found on Berisha's person.
Vincent Desiderio, a forensic scientist with the New Jersey State Police, explained at trial that the wax from the candle on Marro's living room floor was "similar" in "composition" to the candle wax taken from Berisha's jacket. Nezezon further opined that two blood swabs taken from Berisha's jacket matched Marro's DNA profile. David Mercado, a local watchmaker, attested that he had known Marro for "[s]ix to eight years" and identified two of the watches seized by police from Berisha as belonging to Marro.
State's witness Jerry Hastaba, a good friend of Marro, said that he knew Berisha through Marro and had socialized with Berisha. On the afternoon of November 5, 2007, Berisha came to Hastaba's Manhattan store and asked Hastaba to get in touch with Marro for him. According to Hastaba, Berisha was acting "fidgety."
The State also introduced a surveillance camera video, which showed a red Lincoln Navigator pulling up to Marro's apartment complex at approximately 10:00 p.m. on November 6, 2007. Shortly thereafter, the video showed defendant and Berisha exiting the vehicle and entering the apartment lobby. Defendant was carrying a large, nearly empty bag at the time. A few minutes later, one of Marro's neighbors heard a gunshot. Berisha's phone records also showed that he and defendant exchanged numerous phone calls between 8:36 and 9:24 p.m. that same night.
After the State rested, defendant moved for a judgment of acquittal, which the court denied. Specifically, the court found that, "based on the evidence . . . , including all the DNA lab work, the medical examiner's conclusions and report, property that was recovered, given the benefit of all inferences, the jury could find both defendants guilty beyond a reasonable doubt[.]"
Defendant testified in his own defense and related the events surrounding Marro's death. He explained how he met Berisha and indicated that he sold marijuana "[o]ff and on" ever since graduating from high school in 1995, selling "full-time" starting in early 2005. Defendant met Berisha, whom he called "Zee," at a nightclub in 1999. Defendant and Berisha remained in contact for the next eight years. Notably, defendant and Berisha saw each other again in August 2007, after defendant called Berisha looking for marijuana to sell. Berisha indicated he had a supply that would be ready in the fall. Defendant made similar inquiries "[a] bunch of times" in the months following.
The shipment arrived on November 6, 2007. That night, Berisha and defendant met at a gas station in Elizabeth to make the exchange. Defendant "could tell like [Berisha] was on something." He thought Berisha was under the influence of oxycontin because Berisha's "face was a little droopy" and his fingers were stained purple, which defendant attributed to touching the purple coating on oxycontin pills.
Although defendant expected Berisha to drive to the Bronx, then to Brooklyn and then home to Staten Island as the two had earlier agreed, Berisha informed defendant that he needed to make a stop in New Jersey to deliver some of the marijuana to a buyer. Berisha and defendant arrived at an apartment building, which defendant later learned was in Jersey City. When they arrived, Berisha told defendant to "come upstairs with me" and "grab that bag [of marijuana] for me." When they arrived upstairs at Marro's apartment, it was clear to defendant that Berisha and Marro knew each other, though defendant had never met Marro.
Defendant remained in the living room while Berisha and Marro went outside to the balcony to discuss the details of Berisha's sale of the marijuana to Marro. When Marro walked back in, according to defendant, Marro "seemed like he was upset. He seemed pissed off." Almost immediately, Berisha and Marro began fighting.
According to defendant, Marro grabbed Berisha's arms as the two began "pulling each other side to side a little bit and . . . Zee lunged forward, [pushing] the guy backwards and it looked like [Marro] tripped as he was going back, and he fell and crashed into the coffee table[.]" Although Berisha fell to the floor as well, "the guy Marro got the brunt of it because he fell straight back and he didn't have the protection of his hands because he was holding [onto] Zee's hands." When Marro's body "smacked" the back of the coffee table, "[t]he table came flipping up," hitting Marro in the head and breaking the glass. The lit candle that had been on the coffee table flew into the air. As defendant was trying to encourage Berisha to leave, Marro stood up and began throwing what defendant described as "sloppy punches" at Berisha, not hitting him. Berisha pushed Marro, causing Marro to hit the wine rack that was against the wall. Defendant heard a "loud crash," after which "bottles went flying everywhere[.]"
Marro crawled on his knees toward his entertainment unit. When Marro stood up, he and Berisha "grabbed each other's hands." Defendant could not see what they were grabbing for. Then, Berisha took a few steps back, at which point defendant heard a gunshot. After hearing the gunshot, defendant saw "something that looked like a revolver in [defendant's] hand." Fearing that the police would arrive in response to the sound of the gunshot, defendant left the apartment alone. A few minutes later, defendant saw Berisha driving the Navigator. Berisha told defendant to get in the vehicle, which defendant did. Berisha then drove defendant to a bar in Elizabeth, near the gas station where they had met up earlier. Defendant took a taxi home.
Defendant concluded by stating that he did not go to Marro's apartment with the intent to rob, kill or inflict serious harm to Marro that night; that he did not see Berisha with a gun or have reason to believe Berisha had a gun before he heard the gunshot; and that he did not kill Marro or do anything to help bring about Marro's death.
Berisha did not testify.
On appeal, defendant raises the following claims:
THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION TO ACQUIT AT THE CLOSE OF THE STATE'S CASE WHERE THE STATE DID NOT SHOW THAT THE DEFENDANT PARTICIPATED IN A COMMON PLAN TO HARM OR ROB THE VICTIM.
THE TRIAL COURT UNCONSTITUTIONALLY SENTENCED THE DEFENDANT TO THE STATUTORY MAXIMUM TERM BASED ON JUDICIAL FINDINGS OF FACT OTHER THAN HIS PRIOR CRIMINAL RECORD.
THE TRIAL COURT EXCESSIVELY SENTENCED THE DEFENDANT TO THE STATUTORY MAXIMUM TERM WHERE IT DID NOT BASE ITS SENTENCE ON THE DEFENDANT'S OWN ACTIONS AND CULPABILITY. POINT IV
THE TRIAL COURT DID NOT CLEARLY INSTRUCT THE JURY ON HOW TO APPLY THE FACTS TO THE THEORY OF ACCOMPLICE LIABILITY. (Not Raised Below)
THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE WHERE NO EVIDENCE SUGGESTS THAT THE DEFENDANT AND BERISHA SHARED A COMMON PURPOSE TO ROB OR HARM MARRO. (Not Raised Below)
Defendant first argues that the trial court erred in denying defendant's motion to acquit at the close of the State's case because the State did not show that defendant participated in a common plan to harm or rob Marro.
Rule 3:18-1 provides that:
[a]t the close of the State's case . . . , the court shall, on defendant's motion . . . , order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.
On a motion for judgment of acquittal, the governing test is whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged. [State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).]
"[T]he trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)).
Our review of a trial court's denial of a motion of acquittal "is limited and deferential[,]" and is governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004). "We give no consideration to evidence or inferences from defendant's case[.]" Ibid. (citing Reyes, supra, 50 N.J. at 459).
We are satisfied that the trial court properly denied defendant's motion of acquittal. The State's evidence demonstrated, among other things: contact between Berisha and defendant on the night of the murder; Berisha's and defendant's presence at Marro's apartment that same night via both the surveillance video and DNA evidence; defendant's possession of a nearly empty bag while he entered Marro's apartment building; Marro's death by blunt force trauma and a gunshot to the head; the condition of Marro's apartment after his death, including the incongruous location of his safe; and Berisha's subsequent possession of Marro's property. While most of this evidence was admittedly circumstantial, when it is viewed, as it must be, most favorably to the State, a reasonable jury could conclude based upon it that defendant robbed and murdered Marro, or was an accomplice to Berisha's robbery and murder of Marro.
Defendant claims that the State failed to establish "a commonality of purpose to harm or rob Marro[,]" which is necessary to establish accomplice liability, State v. Whitaker, 200 N.J. 444, 457-58 (2009). However, as the State aptly notes, "[c]oncerted action need not be proved by direct evidence of a formal plan to commit a crime[.] . . . Rather the proof may be circumstantial and participation and acquiescence may be inferred from conduct, as well as spoken words." State v. Gelb, 212 N.J. Super. 582, 591-92 (App. Div. 1986) (citation omitted), certif. denied, 107 N.J. 633 (1987). Here, the circumstantial evidence, including defendant's presence at Marro's apartment with Berisha, holding a nearly empty bag, around the time of Marro's beating and death, adequately supports a finding of concerted action or commonality of purpose. It is of no moment that the evidence may also be hypothetically consistent with defendant's innocence. See State v. Mayberry, 52 N.J. 413, 436 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969).
Defendant also challenges the trial court's decision to sentence him
to the statutory maximum for a second-degree conviction.*fn3
Specifically, defendant argues that: (1) the trial court
"unconstitutionally made judicial findings of fact" because the court
"could not possibly rely on the jury's findings to determine the
application of aggravating factors one and two," and (2) the trial
court's sentence was excessive because "the record does not reveal
that any injuries sustained by Marro were attributable to the
defendant's actions" or that
defendant "enter[ed] the apartment with any plan to harm or rob
Our review of the length of a sentence is narrow, and governed by the abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). We must "assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). In doing so, we will not substitute our assessment of the aggravating and mitigating factors for the trial court's judgment. State v. Miller, 205 N.J. 109, 127 (2011). We must also decide whether the sentencing court applied correct legal principles in exercising its discretion. Blackmon, supra, 202 N.J. at 297. We will not reverse a sentence unless "the application of the facts to the law has resulted in a clear error of judgment or a sentence . . . 'shocks the judicial conscience.'" Ibid. (quoting Roth, supra, 95 N.J. at 363-65).
The record amply supports the trial court's finding that aggravating factors one (the nature and circumstances of the offense) and two (the gravity and seriousness of harm inflicted on the victim) apply. As the trial court noted, Marro suffered a "savage beating" that contributed to Marro's cause of death. These aggravating factors, plus aggravating factors three, six, and nine -- which the trial court found and defendant does not challenge -- justify the trial court's imposition of the maximum statutory sentence. Such a sentence is not an abuse of the trial court's discretion, nor does it shock our judicial conscience. Ibid.
Contrary to defendant's arguments, the trial court could and did rely upon the jury's findings to support this decision. Although defendant continues to assert that "the facts suggest [the fight between Marro and Berisha] was the sole cause of Marro's injuries and death," and that "defendant did not enter the apartment with any plan to harm or rob Marro[,]" the jury clearly disagreed, as it found defendant guilty of second-degree aggravated assault based on defendant causing or attempting to cause Marro serious bodily injury. Even if the record does not reflect exactly which of Marro's injuries defendant caused, the verdict demonstrates that the jury attributed at least enough of the injuries to defendant to warrant a second-degree aggravated assault conviction and, concomitantly, a finding of aggravating factors one and two.
Defendant next argues, for the first time on appeal, that the trial court did not clearly instruct the jury on how to apply the facts to the theory of accomplice liability. Defendant also maintains that the instructions on the lesser-included offenses were similarly deficient, and the court erred in omitting instructions on third-degree aggravated assault and simple assault.
We find insufficient merit in defendant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add these additional comments.
The trial court's instruction on accomplice liability tracked the Model Jury Charge (Criminal), § 2C:2-6 -- Liability for Another's Conduct (revised May 22, 1995). Regarding the required mental state, the court properly explained that one can only be an accomplice if he possessed a purpose to promote or facilitate the particular crime of another, and that neither "[m]ere presence at or near a [crime] scene" nor "knowledge that [an]other person was going to commit [a] crime" is sufficient to make defendant an accomplice to that crime. The court also noted that "[a]ccomplice status should be considered separately as to each charge." In response to a later inquiry by the jury regarding accomplice liability, the court re-read the accomplice liability charge in its entirety.
The charge was more than adequate, and was not "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. The fact that the charge, or the charges on the lesser-included offenses, "failed to reference either the defendant or Berisha or their conduct in particular[,]" does not render the charges unclear or unjust. As the trial court explained to the jury, it read the accomplice liability charge "generically" because the State asserted accomplice liability for both defendant and Berisha, and with respect to all of the various crimes charged. Also, as the State aptly notes, "[a]ny additional use of the facts . . . may have improperly intruded into the jury's vital fact-finding function." Moreover, if, as defendant suggests, the jury's interest in the meaning of accomplice liability resulted from its belief that such liability applied to defendant, the verdict demonstrates the effectiveness of the court's instructions, as the jury found Berisha guilty of aggravated manslaughter, felony murder, robbery, and possession of a firearm for an unlawful purpose, but found defendant guilty of only aggravated assault.
Finally, given the gravity of Marro's injuries and his ultimate death, the omission of instructions on the lesser- included offenses of third-degree aggravated assault and simple assault was not in error, let alone "clearly capable of producing an unjust result," R. 2:10-2. See also N.J.S.A. 2C:1-8e ("[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense").
Lastly, defendant maintains, for the first time on appeal, that the jury's verdict was against the weight of the evidence because no evidence suggested that defendant and Berisha shared a common purpose to rob or harm Marro. Defendant made no motion for a new trial. We find this argument to be without merit.
Rule 2:10-1 prohibits our review of whether a jury verdict is against the weight of the evidence "unless a motion for a new trial on that ground was made in the trial court." But see State v. Smith, 262 N.J. Super. 487, 511 (App. Div.) (noting we can reach the merits of such an appeal, "if we choose, in the interest of justice"), certif. denied, 134 N.J. 476 (1993). In considering whether a jury verdict was against the weight of the evidence, we will not intervene "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. No miscarriage of justice exists where the "'trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) (quoting Smith, supra, 262 N.J. Super. at 512).
As noted above, the trial court properly denied defendant's motion for judgment of acquittal after the State concluded its case, as a jury could have properly found beyond a reasonable doubt that defendant was guilty of the crimes charged. See D.A., supra, 191 N.J. at 163. The only evidence thereafter presented by defendant was his own testimony, which the jury was free to accept or reject, in whole or in part. See Smith, supra, 262 N.J. Super. at 512 ("Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced").