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State of New Jersey v. Christopher Gonzalez

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 17, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHRISTOPHER GONZALEZ, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-08-1362.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2012

Before Judges Sabatino and Ashrafi.

Defendant Christopher Gonzalez stood trial twice before two juries, both of which found him guilty of criminal offenses. He appeals from the resulting judgment of conviction and a sentence of imprisonment for kidnapping, armed robbery, aggravated assault, and weapons offenses. We affirm.

I.

In 2007, a Middlesex County grand jury indicted defendant and three others, Sammy Santiago, Vanessa Santana, and Cruz DeJesus, on the following charges: (count one) second-degree conspiracy to commit armed robbery, kidnapping, and burglary, N.J.S.A. 2C:5-2; (count two) first-degree armed robbery, N.J.S.A. 2C:15-1; (counts three and twelve) second-degree kidnapping, N.J.S.A. 2C:13-1b; (count four) fourth-degree criminal restraint, N.J.S.A. 2C:13-2; (count five) second-degree burglary while armed, N.J.S.A. 2C:18-2; (count six) third-degree theft, N.J.S.A. 2C:20-3; (count seven) fourth-degree unlawful theft of a credit card, N.J.S.A. 2C:21-6c; (count eight) second-degree possession of a weapon for an unlawful purposes, N.J.S.A. 2C:39-4a; (count nine) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; (count ten) fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and (count eleven) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2.

Defendant and his co-defendants were tried two times because the first jury only reached a verdict on some counts of the indictment. At the first trial in January and February 2008, the jury found defendant guilty of eight counts but was unable to reach a unanimous decision on the two kidnapping counts, the aggravated sexual assault count, and part of the conspiracy count. The first jury also found Vanessa Santana guilty of two counts related to theft and use of a debit card at an ATM machine, but it was unable to reach a unanimous verdict as to any other counts against the three co-defendants.

At the second trial in May and June 2008, the jury found defendant Gonzalez guilty of both kidnapping counts and conspiracy to commit kidnapping and burglary, but it found him not guilty of aggravated sexual assault. The second jury was again unable to reach a unanimous verdict on any counts as to co-defendant Santiago, and it acquitted Vanessa Santana and Cruz DeJesus of all charges they were facing in the second trial.

In September 2008, the court imposed on defendant terms of imprisonment aggregating a total of thirty-two years in prison, with eighty-five percent of the term to be served before eligibility for parole in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

In this appeal, defendant raises the following arguments:

POINT I

THE JURY'S VERDICTS WITH RESPECT TO BOTH KIDNAPPING CHARGES EMBODIED IN COUNTS III AND XII AS WELL AS THE CRIMINAL RESTRAINT CHARGE EMBODIED IN COUNT IV WERE AGAINST THE WEIGHT OF THE EVIDENCE.

A. THERE WAS INSUFFICIENT CREDIBLE EVIDENCE ELICITED AT TRIAL TO ESTABLISH THE REQUISITE ELEMENTS OF SECOND DEGREE KIDNAPPING OF EITHER CRUZ DeJESUS OR [M.G.].

B. THERE WAS INSUFFICIENT CREDIBLE EVIDENCE ELICITED AT TRIAL TO ESTABLISH THE REQUISITE ELEMENTS OF CRIMINAL RESTRAINT OF EITHER VICTIM EMBODIED IN COUNT IV OF THE INDICTMENT.

POINT II

THE PROSECUTOR'S SUMMATION IN THE FIRST TRIAL EXCEEDED THE BOUNDS OF PROPRIETY.

POINT III

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL DURING THE SECOND TRIAL AS A RESULT OF THE PROSECUTOR'S CROSS-EXAMINATION OF THE DEFENDANT WHICH IMPROPERLY REFERENCED A PORTION OF CO-DEFENDANT SANTIAGO'S STATEMENT TO THE POLICE WHICH HAD BEEN REDACTED, AND WHICH INFRINGED UPON THE DEFENDANT'S RIGHT OF CONFRONTATION AS WELL AS INFERENTIALLY ESTABLISHING HIS CRIMINAL CULPABILITY.

POINT IV

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AT THE FIRST TRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER ESSENTIALLY EXPRESSING HIS OPINION REGARDING THE DEFENDANT'S GUILT (PARTIALLY RAISED BELOW).

POINT V

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AT THE FIRST TRIAL ARISING OUT OF TESTIMONY ELICITED FROM A STATE'S EXPERT WITNESS WHICH IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF TO THE DEFENSE.

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Before addressing these arguments, we will recount the pertinent evidence presented at the trials.

II.

The crimes were committed on July 21, 2006, at the Woodbridge apartment of M.G., who was pregnant, and her boyfriend Cruz DeJesus, who is the father of the co-defendant with the same name.*fn1 At approximately 10:45 a.m. on that date, M.G. left the apartment to drive a relative to work. She saw a man outside whom she later identified as defendant. Most significant for purposes of identification, her description of the man to the police accurately included reference to a scar over the eye, which defendant had.

When M.G. returned to the apartment about forty minutes later that morning, defendant was in the hallway and spoke to her in English, but she could not understand him because she only speaks Spanish. Another man stepped forward holding a small silver gun. He announced a robbery in Spanish and ordered her to open the apartment door. M.G. could not open the door because it was secured by a door chain. At the trials, M.G. did not identify the second man. She had given the police a description that was both consistent and inconsistent with co-defendant Santiago's features.

DeJesus testified that he was alone in the apartment that morning and had just gotten out of the shower. Wearing only a towel, he unlatched the chain for M.G., and two men pushed her through the door onto the floor. He said one of the men pointed a small, silver-plated revolver at him. The men then pulled his towel off, covered his head with the towel, threw him on the floor, and demanded money, jewelry, and bank cards. DeJesus later told the police he saw the men only briefly and was not able to identify them. At the first trial, he made no identification. At the second trial, he testified he could identify Santiago.

At the time of the incident, DeJesus was on parole for a 2005 conviction for drug offenses, and he had an extensive criminal record for selling drugs. At the trials, he denied the men were looking for drugs. He claimed he no longer sold drugs and had none in the apartment. M.G. also testified that the men did not ask for drugs and claimed she had never seen cocaine or marijuana in the apartment.

The men ordered DeJesus into his bedroom. He crawled on his hands and knees and lay on the floor while the men searched the bedroom. At some point, the men tied DeJesus's hands behind his back with a plastic tie. One of the men placed a gun to DeJesus's head and threatened to "kick the baby out of [M.G.]" if he did not reveal the pin number for his ATM card. DeJesus complied with the demand. The men then put DeJesus in a closet and tied his feet together with a plastic tie.

M.G. testified that the men also tied her hands behind her back with a plastic zip tie, and they put her in a separate closet in the bedroom after removing her jewelry. According to M.G., while the Spanish-speaking man ransacked the apartment, defendant took her out of the closet and brought her to another bedroom where he sexually assaulted her.

The Spanish-speaking man took DeJesus's credit and debit cards and left the apartment. He was gone less than fifteen minutes. A bank statement admitted in evidence showed that at 12:45 p.m. that day a person later determined by photographic evidence to be co-defendant Vanessa Santana withdrew $1,000 from DeJesus's account at a bank ATM machine located about one mile from the Woodbridge apartment.

According to M.G.'s testimony, while the Spanish-speaking man was gone, defendant took her out of the closet and brought her to a bedroom where he sexually assaulted her again. M.G. testified that she screamed during the assault. DeJesus, who was still tied up in a closet, testified that he heard M.G. scream and called out to her.

The two intruders left the apartment shortly after the Spanish-speaking man returned from the bank. About fifteen minutes to an hour later, DeJesus freed his hands and used scissors to cut the tie binding his feet. He found M.G. lying on her stomach on a bed, fully clothed, her hands and feet bound, and crying hysterically. M.G. told DeJesus she had been raped. After being untied, she immediately used the toilet, showered, brushed her teeth, and changed her clothes.

DeJesus spent some time looking for his cell phone. When he found it, he first called the bank to see if he could stop access to his account. He was informed that $1,000 had already been withdrawn. At 2:08 p.m., he made a 911 call to the police.

Later that afternoon, Peter Gozsa, a crime scene investigator with the prosecutor's office, arrived at the scene and began photographing the apartment and collecting evidence for DNA and fingerprint analysis, including sheets, pillows, clothes, plastic zip ties, cigarette butts found on the floor, and a mask found on the coffee table. Gozsa found no drugs or drug paraphernalia in the apartment. Although he dusted almost the entire apartment for fingerprints, he found only one identifiable set of prints, and they belonged to M.G. Gozsa also saw streak marks from a wet rag on the surfaces of furniture, which appeared to indicate that someone had tried to clean up the crime scene.

At approximately 5:45 p.m., M.G. was taken to a hospital where she was first seen by a sexual assault nurse examiner.

The nurse observed that M.G. had bruises and scratches on her wrists and ankles consistent with having been bound. She collected specimens for analysis by the State Police laboratory. M.G. was then examined by a physician, who described her as "hysterical" and in "emotional distress" but found no evidence of physical injuries.

In his trial testimony, DeJesus said that the men had stolen $2,000 in cash that he had hidden in his bedroom closet -- a theft he had not initially reported to the police. Although neither DeJesus nor M.G. had seen DeJesus's son on the day of the robbery, co-defendant Cruz DeJesus was accused of being a participant in the conspiracy because he knew about the hidden cash in the closet and had moved out of the apartment a few weeks earlier after arguing with his father. As previously stated, the second jury acquitted the son of all charges.

Forensic examination of evidence collected from M.G. at her medical examination and from the apartment did not corroborate that she had been sexually assaulted. Other forensic evidence presented at the trials pertained to DNA analysis that connected defendant to the cigarette butts found in the apartment and co-defendant Santiago to the mask the police found.

In March 2007, Vanessa Santana gave a statement to the police, a redacted version of which was played for the juries. She admitted going to the bank and using the debit card at an ATM machine. She said she did not know that the ATM card belonged to DeJesus. She said she and another person, who was not identified in the statement, drove back to the apartment, and the other person went inside and returned to the car carrying a bag containing marijuana and cocaine.

At the second trial, the prosecution also offered in evidence a redacted version of a statement given by co-defendant Santiago in which he admitted he had committed the robbery along with a person he knew only as "Gangbanger." Santiago admitted he stole $2,000 in cash and illegal drugs from the apartment.

At the first trial, the defense presented only one witness, a Woodbridge police officer. At the second trial, defendant testified. Having already been convicted of robbery, weapons, and other charges by the first jury, defendant admitted those crimes, but he adamantly denied the charge of sexual assault. He also provided exculpatory testimony for his co-defendants.

He testified that early on July 21, 2006, he and DeJesus reached an agreement over the phone for him to buy on "consignment" two kilos of cocaine, worth approximately $40,000 in that form. Defendant claimed he had purchased large quantities of cocaine from DeJesus many times during the previous three years, and that M.G. had taken over his operation when DeJesus was in jail earlier that year. Defendant testified that he and Vanessa Santana, who was Santiago's girlfriend, left the Bronx and drove to Woodbridge to complete the drug transaction. He said that neither Santiago nor Cruz DeJesus knew about the transaction. Instead, for "security reasons," defendant asked one of his friends to follow him in another car. He refused to name the friend except by the street name "Gangbanger." He also testified that Gangbanger spoke Spanish.

Defendant admitted he was carrying a gun on the day of the incident. He testified that DeJesus allowed him into the apartment after M.G. left that morning. DeJesus retrieved two kilos of cocaine from under the kitchen sink and placed them on the dining room table. Gangbanger then knocked on the door and was admitted by DeJesus. A short time later, M.G. returned home, and Gangbanger "seized the opportunity," pulled out a nickel-plated .357 long-barrel revolver, pushed M.G. onto the couch, and "[s]tart[ed] the robbery." Defendant claimed he had initially intended only to buy cocaine but he "just went along with the situation and did the robbery."

Defendant testified further that he and Gangbanger tied DeJesus's and M.G.'s hands behind their backs with zip ties they found in the kitchen. They then instructed them to go to the master bedroom, and they searched the apartment. He claimed they found and stole two more kilos of cocaine from a safe in the master bedroom, approximately $20,000 in cash from under the dresser in the master bedroom, $2,000 in cash from the master bedroom closet, six pounds of marijuana, coins, bank cards, jewelry, and a gun. Defendant testified that he then went out to the parking lot, gave Vanessa Santana the bank card and its pin number, and told her to drive to the bank and withdraw $1,000, which she did. Defendant testified that he and Gangbanger met later that day at a "stash house" in New York, where they divided the proceeds of the robbery. He testified that he took two kilos of cocaine and $10,000 for himself.

Defendant claimed that Vanessa Santana did not see Gangbanger and knew nothing about the robbery. Regarding Santiago, defendant said he had known him all his life and considered him "like a brother." Defendant told Santiago what had happened later that evening, including the location of the apartment and a description of the stolen items. He could not understand why Santiago had confessed to committing the robbery. Regarding the mask that contained Santiago's DNA, defendant said it was a paintball mask that he and Santiago had used. He claimed that Gangbanger brought the mask into the apartment from defendant's car.

As previously stated, neither jury was able to reach a unanimous verdict on Santiago, and the second jury acquitted Vanessa Santana and Cruz DeJesus. It also acquitted defendant of the sexual assault charge.

III.

Defendant contends the evidence was insufficient to establish all essential elements of second-degree kidnapping as charged in counts three and twelve of the indictment.

In reviewing a trial court's denial of a motion for judgment of acquittal, "the relevant question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Josephs, 174 N.J. 44, 81 (2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979)); see State v. Reyes, 50 N.J. 454, 458-59 (1967). The State's evidence should be viewed "'in its entirety and give[n] the benefit of all its favorable testimony and all of the favorable inferences' to be drawn from that testimony . . . ." State v. Spivey, 179 N.J. 229, 236 (2004) (quoting State v. Moffa, 42 N.J. 258, 263 (1964)).

The Criminal Code of New Jersey describes the essential elements of kidnapping for a purpose other than to collect a ransom. In relevant part, N.J.S.A. 2C:13-1b states:

A person is guilty of kidnapping if he unlawfully removes another . . . a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:

(1) To facilitate commission of any crime or flight thereafter; [or]

(2) To inflict bodily injury on or to terrorize the victim or another . . . . [Emphasis added.]

Defendant contends the jury could not conclude that M.G. and DeJesus were "remove[d] . . . a substantial distance" or "confine[d] . . . for a substantial period." We need not address defendant's argument that restraining the victims within their own apartment fails to establish the crime of kidnapping by asportation, that is, "remov[al] . . . a substantial distance." The evidence was sufficient for the jury to find that the victims were confined for a substantial period of time, thereby satisfying the alternative basis for the kidnapping offense.

In State v. La France, 117 N.J. 583, 592-94 (1990), the Supreme Court addressed the meaning of "a substantial period" as it relates to the kidnapping statute. Following the reasoning of State v. Masino, 94 N.J. 436, 447 (1983), an asportation case, the Court said whether the period of confinement is substantial must be measured in "qualitative terms," La France, supra, 117 N.J. at 585, 590, not just its length in hours, minutes, or other measurable time. The confinement must be "restraint that is not merely incidental to the underlying substantive crime." Id. at 591. It must "substantially increase the risk of harm beyond that necessarily present in the crime itself." Id. at 587 (citing Virgin Islands v. Berry, 604 F.2d 221, 227 (3d Cir. 1979)).

In La France, the defendant committed a home robbery. He bound the husband and left him in a bedroom for at least thirty minutes while he sexually assaulted the wife in the hallway. The husband eventually freed himself and subdued the defendant. Id. at 591-93. The Supreme Court held that the "jury could rationally conclude the thirty-minute confinement of the husband was a 'substantial period' when coupled with the vulnerability and harm brought to his wife as a result of his confinement . .

. ." Id. at 593. Similarly, in cases where elderly victims of home invasion robberies were bound by the robber, we have held the jury could rationally find that the elements of kidnapping had been proven, even where the victim freed himself in a matter of minutes. See State v. Denmon, 347 N.J. Super. 457, 465-66 (App. Div.), certif. denied, 174 N.J. 41 (2002); State v. Bryant, 217 N.J. Super. 72, 80-82 (App. Div.), certif. denied, 108 N.J. 202, 652, cert. denied, 484 U.S. 978, 108 S. Ct. 490, 98 L. Ed. 2d 488 (1987).

We have found insufficient evidence of confinement in a home invasion robbery where the defendants ordered the victim not to move, and when he did, they subdued the victim, put duct tape over his mouth, and then beat the victim to death as he continued to struggle. State v. Soto, 340 N.J. Super. 47, 73-75 (App. Div.), certif. denied, 170 N.J. 209 (2001), overruled in part on other grounds by State v. Dalziel, 182 N.J. 494, 504 (2005). We concluded in Soto that the confinement was part of the underlying crimes, including homicide, rather than the separate crime of kidnapping that increased the risk of harm to the victim. Id. at 75.

Likewise, the evidence of confinement was insufficient where the defendant sexually assaulted a girl on the stairs of her apartment building, then ordered her not to leave while he fled the building, and she remained in place for about thirty seconds as he fled. State v. Purnell, 394 N.J. Super. 28, 34-35 (App. Div. 2007). We said the girl's confinement was incidental to the sexual assault and not for a substantial period that enhanced the risk of harm to her, especially because the risk was decreasing as the defendant quickly fled. Id. at 53-55.

In State v. Lyles, 291 N.J. Super. 517, 523-25 (App. Div. 1996), certif. denied, 148 N.J. 460 (1997), we reversed the defendant's conviction for kidnapping where he had committed a so-called date-rape in the victim's apartment and then prevented the victim from leaving for about two-and-a-half hours. The defendant's purpose in confining the victim after the sexual assault was not to commit another crime but to talk to her. See id. at 523-24, 527. We said: "reasonable minds could not differ in concluding that defendant's conduct, while opprobrious and certainly constituting the heinous second-degree crime of sexual assault, cannot be reasonably construed as also constituting an independent crime of first-degree kidnapping by unlawful confinement." Id. at 527.

In this case, the evidence was sufficient to permit the jury to find substantial confinement that increased the risk of harm to M.G. and DeJesus beyond the commission of the robbery. The victims were tied and placed in separate closets for more than an hour. The confinement not only terrorized the victims but it also increased the risk that they would suffer injury. The jury could reasonably find that the confinement went beyond restraints incidental to commission of the robbery. We conclude that the trial court did not err in denying defendant's motion for a judgment of acquittal on the kidnapping charges.

Defendant also contends that the evidence was insufficient to find him guilty of fourth-degree criminal restraint, as charged in count four, because the victims were not exposed to the risk of serious bodily injury, as required by N.J.S.A. 2C:13-2a. The testimony of the victims was that defendant and the second intruder placed a gun to DeJesus's head and also threatened to kick the pregnant M.G. in the stomach. There was ample evidence of exposure to serious injury as part of the restraints.

IV.

Defendant contends that the prosecutor's remarks in summation during the first trial deprived him of a fair trial. We agree that error was committed in summation arguments during the first trial, but the prejudicial comments were directed at the culpability of other defendants and did not taint the jury's partial verdict of guilty against defendant Gonzalez.

During her summation, the prosecutor showed the jury a Power Point slide of the opinion in State v. Bridges, 133 N.J. 447 (1993), for the purpose of explaining co-conspirator liability. She stated:

The best way to explain . . . a coconspirator's acts and liability is through illustrations. Examples, this is the case of Bennie Bridges. In this case the defendant did not get out of the car while his co-defendants who were armed with weapons entered a party, shot into a crowd that resulted in a death.

Defense counsel immediately objected and later moved for a mistrial. At sidebar, the court directed that the Power Point slide be removed. After hearing argument, the court ruled that the prosecutor was permitted to use hypothetical examples but she could not use an illustration from a specific case and could not tell the jury that the defendant in that case had been convicted of conspiracy. Back before the jury, the prosecutor recited facts from Bridges as a hypothetical case, and she argued that the person who had stayed outside in the car in the hypothetical case could be held liable because "the law says yes, that [the shooting] is reasonably foreseeable."

The prosecutor then discussed another hypothetical situation without telling the jury that the facts were derived from State v. Stein, 70 N.J. 369 (1976). The prosecutor told the jury that a person in that hypothetical case who was not present and not directly involved in the crimes, or even knew they were going to take place, "was held responsible for the armed robbery" under the law of co-conspirator liability. She said, "They held him responsible."

Defense counsel objected. After another sidebar, the judge instructed the jury that she had "sustained counsel's objections regarding the individuals being held responsible," that comments by the attorneys were not evidence, and that the judge would provide further guidance in her final instructions to the jury as to what the jury "can consider and what you cannot consider." The prosecutor then resumed discussing the second hypothetical, stating to the jury that "it's simply an illustration, that's all it is, to explain co-conspirator liability which the State submits is something that even lawyers wrangle with."

In the final jury charge, the judge instructed the jury that "[a]rguments, statements, remarks, openings and summations of counsel are not evidence." The judge told the jury that the prosecutor had referred to an example depicted in her Power Point presentation, which may have remained on the screen while the parties were arguing at sidebar. The judge instructed the jury not to consider any information contained on the slide, and explained further that:

The reason I want you to strike that is because there may have been reference to somebody being held responsible under certain circumstances. That's not our case.

The factors in that case are completely different . . . and you have to determine the facts in this case. The prosecutor [used] . . . some examples as to what may be liability under accomplice and conspiracy.

I just don't want you to consider that case in any way; in other words, strike it from your mind. Any examples you can certainly use because you can find under certain facts that this liability exists. You don't have to. And that's what I want to make certain that you understand. . . . You must apply the law as I give it to you in this case, apply it to the facts as you find them in this case and not be concerned with another case or the outcome simply because that case is completely different from this case.

On appeal, defendant argues that "it was highly improper for the prosecutor to convince the jury of the defendant's criminal culpability based on actual cases, since to do so would essentially usurp the function of the jury." We agree that the prosecutor's argument from other cases was improper, but we disagree that it had any potential of convincing the jury of defendant's culpability.

A prosecutor "must confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178 (2001). The facts from the Bridges and Stein cases were not part of the evidence in this case. Another jury's conviction of a defendant in a different case, or whether a person described in a hypothetical narrative was "held responsible," has no relevance to the jury's determination of the facts in a criminal case and defendant's guilt or absence of guilt.

The prosecutor was attempting to educate the jury about the law of co-conspirator liability, but that task belonged to the judge by means of a jury charge prepared in accordance with all the relevant law and procedural requirements of Rule 1:8-7(b). Use of illustrations as was attempted here could mislead the jury on the law and usurp the court's function. The jury in this case could not possibly learn all the relevant circumstances of the other cases. It was not present to hear the evidence at the other trials. Fact findings of another jury or another court are neither evidence nor statements of law for the jury to consider in reaching its verdict.

We do not mean that a prosecutor may never use Power Point demonstrations or hypothetical examples to support an appropriate argument. In State v. Mahoney, 188 N.J. 359, 376, cert. denied, 549 U.S. 995, 127 S. Ct. 507, 166 L. Ed. 2d 368 (2006), the Court found no error in the following argument that the prosecutor made in response to defense argument that the victims had ultimately not suffered a monetary loss by an attorney's theft and misapplication of client funds:

[T]he defense argument that they got their money therefore, [defendant] didn't have any criminal intent and he didn't commit a theft, that is ridiculous. I'll give you a whole bunch of examples.

Somebody who is shoplifting at a store and gets caught by the security guard on the way out and then says well, I still have it inside my pocket. Here, you can have it back. So now I didn't commit a shoplifting. Or somebody goes into a person's house and commits a burglary and takes an expensive piece of jewelry and witness sees who the person is and person gets away.

And then an arrest warrant is issued for that person and 11 months later the person is arrested, and then the person says oh, here's that watch. You can have it back now. I didn't commit the burglary. . . . [Id. at 374.]

The Supreme Court stated: "In light of the defense advanced by defendant, it was entirely proper for the prosecutor to point out that, once defendant had completed the crimes for which he stood charged, returning the funds he stole does not negate an element of the offenses charged . . . ." Id. at 376-77.

In this case, the prosecutor's recitation of more detailed hypothetical facts, initially presented by means of reference to a reported case, went beyond the generalized illustrations the prosecutor used in Mahoney. It was error that the trial court recognized and corrected during the trial.

We conclude that the prosecutor's argument was harmless error as to defendant Gonzalez because it did not pertain to his culpability in the case. The references to a hypothetical person who was guilty as a co-conspirator despite remaining outside in a car or not participating directly in a crime were obviously directed at co-defendants Vanessa Santana and Cruz DeJesus. Santana stayed outside in the parking lot while the robbery and other crimes were committed in the apartment, and Cruz DeJesus was not present at the scene. In contrast, the prosecution's evidence was that defendant was a principal in the commission of all the crimes, personally committing the acts that constituted armed robbery, burglary, kidnapping, assault, and weapons offenses. The improper closing argument was not directed to the jury's consideration of evidence against defendant, and we therefore conclude that it did not deprive him of a fair trial. See State v. Wakefield, 190 N.J. 397, 437 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); State v. Nelson, 173 N.J. 417, 460 (2002); State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Defendant also contends that the prosecutor prejudicially stated that the jury should believe M.G.'s testimony because a "pregnant woman wouldn't lie." Furthermore, the prosecutor improperly commented that the sexual assault examination of M.G. could have endangered her unborn child.

Prosecutors are generally permitted to respond to arguments raised by defense counsel in summation. State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000). There is no prosecutorial misconduct if "remarks were a measured response to defendant's summation made in an attempt to 'right the scale.'" State v. Murray, 338 N.J. Super. 80, 88 (App. Div.) (quoting State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991)), certif. denied, 169 N.J. 608 (2001). Here, the challenged comment about whether a pregnant woman would lie was in response to defense counsel's argument that M.G. lied about the sexual assault because she wanted to extract revenge for the robbery. When viewed in context, the prosecutor did not improperly argue that pregnant women as a group are credible witnesses but only that M.G. would not have lied about being sexually assaulted because, as a result of that allegation, she had to undergo the invasive "rape kit" procedure.

However, the further argument about danger to the fetus was improper and should not have been made. It was not supported by evidence and was speculative and inflammatory. Nevertheless, the comment apparently had no material effect on the jury's deliberations because the first jury did not convict defendant of the sexual assault charge, and the second jury acquitted him of that charge. In the context of the entire summation and all the evidence at trial, the prosecutor's improper remarks were harmless error. See State v. Jenewicz, 193 N.J. 440, 472 (2008); State v. Marshall, 123 N.J. 1, 152-53 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).

Defendant also argues as plain error that the prosecutor improperly exhorted the jury to convict him as a means of doing justice for M.G. and also falsely told the jury that the police witnesses had no motive to lie. These arguments do not have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We do not view the challenged remarks as rising to the level of prejudicial closing argument.

V.

Defendant argues error in denial of his motion for a mistrial during the second trial after the prosecutor made reference to information contained in co-defendant Santiago's confession to the police. Defendant argues that the reference violated defendant's right of confrontation because Santiago did not testify. Bruton v. United States, 391 U.S. 123, 136-37, 88 S. Ct. 1620, 1628, 20 L. Ed. 2d 476, 485 (1968).

A redacted version of Santiago's statement was played for the jury at the second trial. During cross-examination of defendant, the prosecutor asked him with reference to the alleged sexual assault, "don't you remember Sammy [Santiago] telling you not to touch the girl [M.G.] when he left for the bank?" Defense counsel objected, and the prosecutor withdrew the question. The judge told the jury that the question had been withdrawn and that they should "strike that question."

In denying the motion for a mistrial, the judge reasoned that the question did not "in any way implicate . . . Santiago's prior statement." The question was not "couched" in terms that alerted the jury to the source of the information, and could have been based on other information in the prosecutor's file. Thus, the judge found no manifest injustice would result from continuing the trial.

In her final charge, the judge instructed the jury that:

I have sustained objections to some questions asked by counsel which may have contained statements of certain facts. The mere fact that an attorney asks a question and inserts facts or comments or opinions in that question in no way proves the existence of those facts. You will only consider such facts that, in your judgment, have been proven by the testimony of witnesses or from exhibits that are admitted into evidence by the Court.

A motion for a mistrial is addressed to the sound discretion of the trial court. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). It is an extraordinary remedy that should be granted only to prevent manifest injustice. State v. Goodman, 415 N.J. Super. 210, 234 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). 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). "An appellate court should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence[,]" and should not disturb a trial court's ruling "absent an abuse of discretion that results in a manifest injustice." State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

We find no abuse of discretion here. Not only did the trial judge address the issue appropriately but the prosecutor's reference did not prejudice defendant because the jury acquitted him of the charge of sexual assault.

VI.

Defendant argues partially as plain error that he was deprived of a fair trial because a police investigator improperly expressed an opinion about his guilt. We find no merit in this argument.

At the first trial, the investigator testified that in February 2007 the State Police laboratory had found male DNA profiles on the cigarette butts and the mask, and that DeJesus was excluded as a source of that DNA. In October 2007, the investigator obtained buccal swabs from defendant and Santiago and delivered the swabs to the laboratory for DNA analysis. Later, the investigator was questioned during cross-examination about a separate topic, why he had not presented a photo array to M.G. to identify the intruders. On re-direct examination, the prosecutor asked the investigator to explain why a photo array was not used. The investigator responded:

Basically when we learned that DNA on the cigarette butts came back for [defendant] . . . we saw the photograph of [defendant] . . . and learned that he fit the description that [M.G.] gave us, specifically a scar on the eye. To get someone's DNA back on an individual [who] in fact had a scar on their eye--At that point, defense counsel objected on the ground that the investigator was not a DNA expert. The court sustained the objection, stating "[h]e can't give us his opinion, just what the results were." The prosecutor then asked:

Q. Just what the results were you received back from the DNA lab?

A. The results, yes.

Q. And with regard to the photo array?

A. Correct. The results of the DNA--the individual . . . whose results came back matched her description.

A police officer may not express an opinion to the jury on a defendant's guilt. State v. McLean, 205 N.J. 438, 461 (2011); State v. Frisby, 174 N.J. 583, 593-94 (2002); State v. Odom, 116 N.J. 65, 77 (1989). The testimony we have recited was not such an opinion but the officer's explanation of why the police did not make use of a photo array to identify the intruders.

VII.

Similarly, we find no merit in defendant's argument that a State Police DNA expert's testimony improperly shifted the burden of proof to defendant to establish his innocence.

At the first trial, the State's DNA expert described the process by which she analyzed DNA in the laboratory. On cross-examination, defense counsel questioned her about the risk of contamination and the possibility of false results. On redirect examination, the prosecutor asked the witness to describe the manner in which the laboratory made identifications from the specimens. The prosecutor then asked whether DeJesus and M.G. were considered exclusions, that is, persons who did not match the DNA profile derived from the specimens. The witness responded:

Yes. Exclusions, you know, as I said, they're not uncommon, they're actually more common than inclusions, and we have a policy in the DNA laboratory that we always save, retain half of the samples for retesting by the defense. There are some instances where samples are consumed; however, this has to be signed off on by a laboratory supervisor, but that didn't occur in this case. There was additional stuff for retesting. [Emphasis added.]

Defense counsel objected and requested a mistrial. He argued that the unsolicited comment about saving half the sample for retesting shifted the burden of proof to the defense because it indicated to the jury that the defense "had the ability to contest these [DNA results], we didn't do it, and, therefore, they're accurate."

The judge denied the motion for a mistrial, finding that the potential for prejudicial inference by the jury could be remedied by the standard jury instruction on the burden of proof. The judge then asked counsel whether he was "looking for some form of curative instruction" in addition to the standard instructions on burden of proof. Defense counsel said he was not because a curative instruction would "only highlight" the error, and that there was "nothing" he could do.

The court subsequently charged the jury that the "burden of proving each element of a crime beyond a reasonable doubt rests upon the State and that burden never shifts to the defendant. The defendant in a criminal case has no obligation or duty to prove his innocence or offer any proof relating to his innocence." Cf. State v. Black, 380 N.J. Super. 581, 594 (App. Div. 2005) (a defendant has no burden to produce any evidence at trial), certif. denied, 186 N.J. 244 (2006); State v. Jones, 364 N.J. Super. 376, 382-83 (App. Div. 2003) (a defendant's failure to present affirmative evidence cannot affect the jury's deliberations).

Here, the expert's testimony was a description of the procedure followed in the State Police laboratory to assure the accuracy of DNA test results. It did not suggest that the defense should have tested the samples. Nor did the prosecutor make any arguments to that effect. There was no reversible error in the DNA expert's testimony about preserving samples for future testing as relevant to proper procedures used in the laboratory.

VIII.

Defendant contends his sentence is excessive because the judge erred in her assessment of aggravating and mitigating factors and because the terms of imprisonment for the robbery and kidnapping charges should have been made concurrent rather than consecutive.

"[T]rial judges are given wide discretion so long as the sentence imposed is within the statutory framework." Dalziel, supra, 182 N.J. at 500. Our review of a sentencing decision can involve three types of issues: (1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-66 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001); State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. State v. Natale, 184 N.J. 458, 488-89 (2005); Roth, supra, 95 N.J. at 365.

Here, the court merged several counts and sentenced defendant on count two, first-degree armed robbery, to sixteen years imprisonment with eighty-five percent of the term to be served before eligibility for parole, and five years parole supervision after completion of the prison term, pursuant to NERA, N.J.S.A. 2C:43-7.2. On each of the two second-degree charges of kidnapping, counts three and twelve, the court imposed consecutive sentences of eight years imprisonment with terms of parole ineligibility and parole supervision under NERA.

On count nine, third-degree unlawful possession of a firearm without a permit, the court imposed a concurrent sentence of four years imprisonment. And finally, on count ten, fourth-degree aggravated assault for brandishing and pointing a gun at the victims, the court sentenced defendant to a concurrent term of eighteen months imprisonment with the full term ineligible for parole as a Graves Act offense, N.J.S.A. 2C:43-6c.

In a detailed explanation of the reasons for the aggregate thirty-two-year sentence, the judge stated her finding of aggravating factor two, the "gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance[,]" N.J.S.A. 2C:44-1a(2), in particular, based on the pregnancy of M.G. and the threat to injure her and the fetus. She also explained her finding of aggravating factor three, "[t]he risk that the defendant will commit another offense,"

N.J.S.A. 2C:44-1a(3); aggravating factor six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1a(6); and aggravating factor nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9).

The judge found that the twenty-three year-old defendant had three prior convictions, one of which was an indictable offense, a prior conviction for an attempted robbery. Based on that record, the judge found aggravating factor six applicable, although she did not appear to put substantial weight on that factor. The judge found no mitigating factors under N.J.S.A. 2C:44-1b applicable to her determination of an appropriate sentence.

The judge's explanation was sufficient to demonstrate that her findings were "'based upon competent credible evidence in the record.'" Dalziel, supra, 182 N.J. at 501 (quoting Roth, supra, 95 N.J. at 364); see State v. Bieniek, 200 N.J. 601, 608 (2010). In accordance with Rule 2:11-3(e)(2), we find insufficient merit to warrant discussion in a written opinion of defendant's argument on appeal that the court erred in failing to find mitigating factor eleven, N.J.S.A. 2C:44-1b(11), that defendant's incarceration would impose excessive hardship to his child, whom defendant did not support financially; and that defendant's youth should have been considered an additional mitigating factor, cf. State v. Pindale, 249 N.J. Super. 266, 288-89 (App. Div. 1991) (sentencing court has discretion to consider the defendant's youth, although not a specifically listed mitigating factor); State v. Tanksley, 245 N.J. Super. 390, 396-97 (App. Div. 1991) (same).

With respect to the imposition of consecutive rather than concurrent sentences, in 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 Court established guidelines for determining when consecutive sentences should be imposed.*fn2 The Legislature abrogated the sixth guideline, N.J.S.A. 2C:44-5a, and the Court subsequently refined the others, Carey, supra, 168 N.J. at 423. The third guideline requires a qualitative analysis of the facts surrounding the crimes, "concentrat[ing] on such considerations as the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Baylass, 114 N.J. 169, 180 (1989).

Here, the judge justified imposition of consecutive sentences by recalling the separate acts of violence committed over a period of more than an hour against two individual victims. As the Supreme Court stated, "'the multiple-victims factor is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms.'" State v. Molina, 168 N.J. 436, 442 (2001) (quoting Carey, supra, 168 N.J. at 429-30); see also State v. Orlando, 269 N.J. Super. 116, 140 (App. Div. 1993) (affirming consecutive sentences on armed robbery and kidnapping convictions because crimes were entirely independent and involved separate and distinct elements), certif. denied, 136 N.J. 30 (1994). Although imposition of consecutive sentences on the three most serious charges is debatable because the crimes were committed "closely in time and place," Yarbough, supra, 100 N.J. at 644, we find no abuse of discretion, particularly because more than one victim was involved and there were several separate incidents of violence constituting the crimes.

Affirmed.


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