July 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAZIER CEDENO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-10-1759.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 6, 2012 --
Before Judges J. N. Harris and Koblitz.
Defendant Jazier Cedeno appeals from a September 9, 2008 conviction for receiving stolen property. N.J.S.A. 2C:20-7. He argues that he was denied a fair trial by various rulings by the trial judge, the jury charge and the prosecutor's comment in summation. He also maintains that his sentence to the discretionary extended term of eight years with a four-year term of parole ineligibility, imposed pursuant to N.J.S.A. 2C:44-3(a), was excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.
A Hudson County grand jury indicted defendant*fn1 and
his co-defendant, Swain Mosley, for third-degree theft by receiving a
stolen 1994 green Ford automobile belonging to Hector Motino on June
6, 2007 (count one). N.J.S.A. 2C:20-7. They were also indicted for
third-degree burglary into the same car on June 5, 2007 (count two),
N.J.S.A. 2C:18-2, and third-degree theft of that car on June 5, 2007
(count three). Both defendants were found guilty of count one,
third-degree receiving stolen property worth over $500,*fn2
and not guilty of the remaining two counts.
Motino, the owner of the car, testified at trial with the assistance of a Spanish interpreter that he was making deliveries in Fairview in his green Ford Explorer. When he returned to his car, he saw a "lean or skinny" man with "tattoos" on his forearms driving his car away. He also saw the co-defendant in the area. When asked if he saw "the man who took your car" in the courtroom, Motino said no. At this point, the judge denied the State's request for defendant to display his tattoos.
The following day, Motino was making deliveries in a different car in West New York when he saw his green Ford Explorer. He saw two men get into his Explorer. He said he recognized the driver as the man from the prior day by his tattoos. Motino identified defendant in court as the driver. Upon the prosecutor's second request, the judge directed defendant to roll up his sleeves to reveal the tattoos on his forearms. Motino then testified that defendant drove off in the Explorer with Mosley as a passenger, at which time Motino called the police. Motino said the police took him to see the two co-defendants later that day at the arrest scene, where he identified them.
Two West New York police officers testified to stopping the Explorer while it was being driven by defendant. One officer also testified that Motino identified defendant at the scene of the arrest as the man he saw with tattoos on his forearms driving the car earlier that day and driving off with his car the day before.
Defendant did not testify.
On appeal defendant raises the following arguments:
POINT I: THE IDENTIFICATION OF DEFENDANT PERMITTED BEFORE THE JURY VIOLATED DEFENDANT'S DUE PROCESS RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. POINT II: THE TRIAL COURT'S JURY CHARGES WERE DEFICIENT AND CUMULATIVELY CAUSED DEFENDANT AN UNFAIR TRIAL.
POINT III: DEFENDANT'S MOTION FOR ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT IV: IMPROPER COMMENT BY THE PROSECUTOR CAUSED AN UNFAIR TRIAL (PLAIN ERROR).
POINT V: DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
Defendant argues in Point I of his brief that requiring defendant to reveal his tattoos in court amounted to a suggestive one-man show-up before the jury. However, defendant was not required to display his tattoos until the victim, Motino, had first identified him in court.
Without question, Motino's testimony was somewhat inconsistent. He was initially unable to identify defendant as the man who drove off in his Explorer on June 5, 2007, but later testified to recognizing defendant as the man he saw driving his car on June 6, 2007, and as the same man who drove off in the Explorer the day before. The jury had the opportunity to view the testimony of Motino and assess his demeanor and credibility.
We note that defendant was found not guilty of stealing the Explorer on June 5, 2007.
Defendant's argument that the showing of defendant's tattoos constituted an overly suggestive identification process pursuant to State v. Herrera, 187 N.J. 493, 503-04 (2006). See also State v. Henderson, 208 N.J. 208, 238-40 (2011).*fn3 Defendant does not claim the out-of-court identification procedure was improper, nor does he claim that any in-court procedure prior to the exposure of defendant's tattoos was suggestive. Because the identification of defendant by the witness took place before defendant's tattoos were shown to the witness and the jury, the identification could not have been tainted by that occurrence.
The display of defendant's tattoos was separate and apart from the identification. In the context of this factual situation, the fact that defendant had tattoos on his forearms was evidential. The judge did not abuse his discretion in permitting the jury to see them. We further note that we generally afford substantial deference to a trial court's evidentiary rulings. State v. Harris, 209 N.J. 431, 439 (2012) (quoting State v. Brown, 179 N.J. 138, 147 (2000).
In Point II of his brief, defendant objects to the jury charge, arguing that the judge erred in not charging false-inone, false-in-all. See Model Jury Charge (Criminal), "False in One-False in All" (1991). Referring to Motino, the judge stated he found absolutely nothing in his testimony to indicate to the jury . . . [that he] testified with a willful intent to deceive. . . . The case law indicates that it's not supposed be to be given very often.
That's why in the regular charge when it talks about how to use inconsistencies, it does say that they can take a portion of it, all of it, or none of it.
The "false-in-one, false-in-all" charge is entirely discretionary and may be given when there is some indicia that the witness has intentionally testified falsely as to a material fact. State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961); see also State v. D'Ippolito, 22 N.J. 318, 324 (1956) (charge may be given where a witness willfully testified falsely to a material fact); cf. State v. Gaines, 377 N.J. Super. 612, 622 (App. Div. 2005) ("Jurors are free to believe some, all or none of a witness' testimony").
Defendant also argues that the judge erred in not charging the complete model charge on prior contradictory statements of witnesses. See Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (1994). The judge found that only minor inconsistencies were demonstrated with regard to Motino's prior statements to police and that the full charge on prior inconsistent statements was warranted only "if there is a significant blatant inconsistency." He viewed the standard charge on witness credibility as sufficient. See Model Jury Charge (Criminal), "Criminal Final Charge-Credibility of Witnesses" (2003).
Defendant argues additionally that the judge erred in not charging the claim of right defense. See Model Jury Charge (Criminal), "Claim of Right Defense to Theft Offenses" (N.J.S.A. 2C:20-2(c)(2)) (1996). This charge should be given only when there is some evidence that would support it. N.J.S.A. 2C:1-13(b)(1); see State v. Ippolito, 287 N.J. Super. 375, 382 n.1 (App. Div. 1996). One of the officers called by the State testified that defendant told him he did not know the car was stolen. The judge found that defendant's statement was "self-serving," not supported by any other documentation or evidence showing a right to drive the car, and insufficient to justify the jury charge of claim of right.
Defendant also maintains that the judge erred in denying defendant's request to charge joyriding as a lesser charge. See Model Jury Charge (Criminal), "Unlawful Taking of Means of Conveyance - Motor Vehicle Operator or Another Exercising Control" (N.J.S.A. 2C:20-10(b) and -10(c)) (1998). Defense counsel indicated the short distance, approximately one-and-a-half to two miles, between the place of theft and the recovery of the Explorer, combined with the lack of evidence of an intention to deprive the owner permanently of the car, supported the charge of joyriding. The judge rejected this argument, noting that the area was urban and, thus, the relatively short distance was not indicative of an intention to return the car. He found no support for the joyriding charge in the record.
In evaluating whether claimed defects in the jury instructions rise to the level of reversible error, we must consider those defects within the overall context of the charge as a whole. State v. Simon, 161 N.J. 416, 477 (1999). The alleged errors must be "viewed in the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). If, upon reviewing the charge as a whole, the reviewing court finds that prejudicial error did not occur, then the jury's verdict must stand. State v. Coruzzi, 189 N.J. Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983).
It was within the judge's discretion to refuse to give the jury charges requested by defendant.
In Point III of his brief, defendant argues that his motion for a judgment of acquittal at the end of the State's case should have been granted. R. 3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967). Under R. 3:18-1, the trial court "'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. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004). This issue lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
In Point IV of his brief, defendant argues as plain error that his right to a fair trial was breached by the prosecutor's comment in summation: "He didn't know the car was stolen? What did he think, the car fairy bought him a car?" Defense counsel did not object to this comment at trial. Consequently, defendant must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotations omitted); see also State v. Daniels, 182 N.J. 80, 95, (2004); R. 2:10-2.
To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "'the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred.'" State v. Echols, 199 N.J. 344, 360 (2009) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001)). See State v. Ramseur, 106 N.J. 123, 323 (1987) (noting that the absence of a timely defense objection to a prosecutor's remarks in summation generally signifies that the remarks are not prejudicial). The State's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Lazo, 209 N.J. 9, 29 (2012). We discern no undue prejudice arising from this comment in the summation and, more importantly, detect no prosecutorial misconduct when properly considering the summation as a whole. See State v. Ingram, 196 N.J. 23, 43 (2008) (evaluating the propriety of a prosecutor's summation when "[t]aken as a whole").
In Point V, defendant argues that his sentence is improper and excessive in that the discretionary extended term pursuant to N.J.S.A. 2C:44-3(a) should not have been imposed.*fn4 Defendant had twelve prior arrests, two prior indictable convictions, three municipal convictions, and various municipal and superior court charges still pending. The judge found the following aggravating factors: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of his prior criminal record and the seriousness of the offense for which he was convicted, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors. He concluded that the aggravating factors predominated and that defendant's prior criminal record made him eligible for an extended term.
The extended term sentence of eight years with a minimum parole eligibility of four years for receiving a stolen car was not manifestly excessive given the aggravating factors, lack of mitigating factors, and defendant's prior adult criminal record. The judge had a "feel of the case" from observing the trial. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009). As our Supreme Court recently reaffirmed, "when [trial judges] 'exercise discretion in accordance with the principles set forth in the Code [of Criminal Justice] and defined by [the Court] . . ., they need fear no second-guessing.'" State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114 N.J. 383, 384 (1989)). Once the trial court balances the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the permissible range for the offense." Id. at 608.
Defendant argues that the judge should have found that he did not intend to cause or threaten serious harm and did not do so, N.J.S.A. 2C:44-1(b)(1) and (2); the conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8); his character is such that another offense is unlikely to occur, N.J.S.A. 2C:44-1(b)(9); he is a good candidate for probation, N.J.S.A. 2C:44-1(b)(10); and that his newborn child satisfies the criteria for establishing an excessive hardship in incarceration, N.J.S.A. 2C:44-1(b)(11).
Defendant's bald assertion of these mitigating factors does not provide evidence of their existence. The charge of receiving a stolen car was not particularly minor under the facts of this case. See State v. Cullen, 351 N.J. Super. 505, 511 (App. Div. 2002) (concluding that possession of .33 grams of cocaine satisfied mitigating factors (1) and (2)). Factors (8), (9) and (10) are belied by defendant's prior criminal history. Having a child in itself does not substantiate factor (11).
Although the extended term was not mandated, the imposition of such a sentence in the mid-range of the extended term does not represent an abuse of discretion. See State v. Pierce, 188 N.J. 155, 168 (2006).