August 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MIGUEL GONZALEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-02-323.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 27, 2012
Before Judges Espinosa and Kennedy.
Following a jury trial, defendant Miguel Gonzalez was convicted of conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; first-degree armed robbery, N.J.S.A. 2C:15-1; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The trial court sentenced defendant on the conspiracy charge to five years imprisonment, with an eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and on the armed robbery charge to ten years imprisonment, subject to the eighty-five percent period of parole ineligibility mandated by NERA. The sentence on the conspiracy charge was made concurrent with the sentence on the armed robbery charge and the charge of possession of a weapon for an unlawful purpose was merged into the armed robbery charge. Defendant appeals from the judgment of conviction and the sentence.
We discern the following facts from the trial record.
In the early morning hours of November 27, 2008, Rhonda Walker left her employment at a restaurant on the campus of Rutgers University in New Brunswick and took a campus shuttle bus to Louis Street, near her home. After stopping to purchase some items at a Walgreens, she began walking through a parking lot adjacent to an open laundromat, where she noticed three men standing together near the building abutting the lot.
One of the men walked off, but the other two remained in place and watched her as she passed. One of the men wore a tan "hoody" and the other wore a blue striped jacket and had on a tan hat. Walker could hear the men follow her as she walked through the lot toward a nearby street.
Upon reaching the street, the man in the tan hoody grabbed Walker by the arm and pulled out a knife with a twelve-inch blade, which he held against her throat. He said, "I just want all the money." The man in the blue striped jacket said "just give me everything" and then searched through Walker's pockets, taking from her two cell phones, keys, cigarettes and twenty dollars.
When Walker asked to keep one of the cell phones so she could call her children, the man in the blue striped coat refused and started to grope her. She screamed and the man in the tan hoody ran off, followed moments later by the other man.
Walker ran after the men back toward the laundromat where she asked people there to call the police. When a taxicab pulled up, she got into the cab and asked the driver to follow the men and to call police. On Seaman Street, she saw the two men separate and she left the cab, asking the driver to relay her location to police.
New Brunswick police officers arrived on the scene and Walker began relating to them the details of the incident. While in the process of doing this, she saw the man in the blue striped jacket walking along the street and she told the officers, "That's him right here. He's right here."
The police officers stopped the man, later identified as defendant, and searched him. They recovered from defendant's pocket a black cell phone which Walker identified as one of the phones taken from her. She identified the make and model of the phone and described for the officers the writing on the screen. The officers returned the phone to her and it was photographed by police later that morning when she went to the police station to given a formal statement.
The officers also stopped a man in the area wearing a tan jacket, but Walker told police he was not the man in the tan hoody who had robbed her earlier. That individual was never located.
Walker brought the cell phone to trial and identified it as the one that had been taken from her during the robbery and recovered from the defendant by the police. She also identified defendant as the man in the blue striped jacket who had taken her belongings while the other man held a knife to her throat.
II. Defendant raises the following arguments on appeal:
POINT ONE - THE JURY INSTRUCTION WHICH PERMITTED THE JURY TO CONVICT DEFENDANT OF POSSESSION OF A WEAPON FOR AN UNLAWFUL
PURPOSE BASED UPON ACCOMPLICE LIABILITY WAS PLAIN ERROR POINT TWO - THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO THE OFFENSE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WAS ERROR WHICH DENIED DEFENDANT A FAIR TRIAL POINT THREE - THE STATE FAILED TO ESTABLISH A PROPER CHAIN OF CUSTODY IN ORDER TO AUTHENTICATE THE CELLULAR TELEPHONE WHICH WAS ADMITTED INTO EVIDENCE POINT FOUR - THE CONVICTION FOR CONSPIRACY TO COMMIT ARMED ROBBERY SHOULD HAVE MERGED INTO THE ARMED ROBBERY CONVICTION POINT FIVE - DEFENDANT RECEIVED AN EXCESSIVE SENTENCE Having considered these arguments in light of the applicable legal principles, we affirm defendant's conviction, but we remand for correction of the judgment of conviction and sentence to reflect that the conspiracy to commit armed robbery charge should have been merged into the charge of armed robbery.
Defendant contends that the trial court erred in instructing the jury that it could find defendant guilty of the charge of possession of a weapon, a knife, for an unlawful purpose, based upon a theory of accomplice liability under N.J.S.A. 2C:2-6(c). He argues that the evidence showed he never was in actual possession of the knife and, further, the evidence was insufficient to support conviction on the basis of constructive possession of the weapon. Relying on State v. Williams, 315 N.J. Super. 384, 387 (Law Div. 1998), wherein the court concluded that "accomplice liability has no meaningful place" in a jury's deliberations on a possessory weapons charge, defendant contends that the trial court erred in allowing the jury to consider such a theory in its deliberations. We disagree.
Initially, we observe that the theory of accomplice liability under N.J.S.A. 2C:2-6 was, in fact, specifically charged in the indictment. Defendant did not raise an objection to the indictment on this basis prior to trial as required by Rule 3:10-2(c) and, further, did not object to the instruction at trial. While defendant's failure to object to the indictment prior to trial may be deemed a waiver of this objection under Rule 3:10-2(c), we nonetheless choose to consider defendant's claim.
Because defendant did not object to the jury charge, our review is guided by the plain error standard, and we will not reverse unless the error is "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result is sufficient; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). In the context of jury instructions, plain error is "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." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).
In State v. Cook, 300 N.J. Super. 476 (App. Div. 1986), we considered a claim similar to the claim advanced by defendant in the case before us. We held:
As to possession of a weapon for an unlawful purpose, the accomplice charge was, in fact, given. Whether accomplice liability even applies to a possessory weapons offense is doubtful. In such a case, the State must show that defendant possessed the weapon with a purpose to use it unlawfully. N.J.S.A. 2C:39-4(d). Possession may be actual or constructive and two or more persons may jointly share actual or constructive possession of a weapon. State v. Latimore, 197 N.J. Super. 197, 210 (App. Div. 1984), certif. denied, 101 N.J. 328 (1985). Once the jury is instructed as to these principles, which is what occurred here, the giving of an erroneous accomplice charge is, at most, harmless. [Cook, supra, 300 N.J. Super. at 489-90.]
These considerations apply in the case before us, as well.
The trial judge instructed the jury on actual, constructive and joint possession in the context of the charge of possession of a weapon for an unlawful purpose. Defendant raises no claim that these charges were erroneous and we discern no basis for such a claim, even if it had been made. The facts of the case could clearly support the jury's determination on the weapons offense under the theory of joint possession. Accordingly, we reject this argument.
We also reject defendant's argument that the trial court erred in denying his motion for acquittal on the possession of a weapon for an unlawful purpose charge at the conclusion of the State's case. Defendant claims there was no evidence he actually possessed the knife and that a finding based on accomplice liability would be improper.
We conduct our review of the denial of defendant's motion for acquittal de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:
[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 459 (1967).]
A motion for a new trial is subject to the discretion of the trial judge. State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). Therefore, on appeal,
Our scope of review is limited to a determination of "whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record." Moreover, we will "give deference to the trial judge's feel for the case since he presided over [it] . . . and had the opportunity to observe and hear the witnesses as they testified." [State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004) (alterations in original) (quoting Russo, supra, 333 N.J. Super. at 140).]
The trial judge's ruling on a motion for a new trial based upon insufficient evidence "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law."
We discern no miscarriage of justice in this case. Our law
has long recognized the concept of "joint possession" pursuant to which two persons may possess the same object at the same time. State v. Morrison, 188 N.J. 2, 14-15 (2006). In addition, "'[c]onspirators are treated as accomplices under N.J.S.A. 2C:2-6, and hence are guilty of the same substantive offense as the principal.'" State v. Taccetta, 301 N.J. Super. 227, 243 (App. Div.) (quoting State v. Curry, 109 N.J. 1, 9 (1987)), certif. denied, 152 N.J. 188 (1997); see also State v. Stein, 70 N.J. 369, 387-88 (1976); State v. Cagno, 409 N.J. Super. 552, 577 (App. Div.), certif. granted in part and denied in part, 200 N.J. 550 (2009).
Guided by these principles, we conclude that the trial court did not err in denying defendant's motion for acquittal under Rule 3:18-1. The record supports the conclusion that defendant and the other individual carried out a coordinated and planned robbery of the victim utilizing the instrumentality of a knife with a twelve-inch blade, which was held to her throat while defendant went through her pockets. Under these circumstances, the fact that defendant himself did not actually hold the knife is of no moment.
Next, defendant claims it was error to admit the cell phone into evidence because its "chain of custody" was insufficient. Our standard of review requires us to give "substantial deference to a trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We review such decisions under "an abuse of discretion standard." State v. Burns, 192 N.J. 312, 332 (2007). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted."
State v. Carter, 91 N.J. 86, 106 (1982). See also State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
"A party introducing tangible evidence has the burden of laying a proper foundation for its admission." State v. Brunson, 132 N.J. 377, 393 (1993). A proper foundation "should include a showing of an uninterrupted chain of possession." Ibid. (citing State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968)). Evidence should be admitted if there is a "reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed." Brunson, supra, 132 N.J. at 393-94 (citation and internal quotation marks omitted). Whether the chain of custody has been adequately established to admit evidence is a determination "'committed to the discretion of the trial judge, and his determination will not be overturned in the absence of a clearly mistaken exercise thereof.'" Morton, supra, 155 N.J. at 446 (quoting Brown, supra, 99 N.J. Super. at 27).
We discern no abuse of discretion in admitting the cell phone into evidence. It was retrieved from defendant's pocket, identified by the victim on the scene, and produced in court by the victim. It matched the photograph of the cell phone taken by police on the day of the incident. This was a sufficient chain of custody to authorize its admission into evidence. Defendant's arguments only go to the weight the trier of fact should accord that evidence; not its admissibility.
Next, defendant contends, and the State concurs, that defendant's conviction on the conspiracy charge should have been merged into the conviction for armed robbery. We agree. N.J.S.A. 2c:1-8(a)(2) provides that a defendant may not be convicted of more than one offense if "[o]ne offense consists only of a conspiracy or other form of preparation to commit the other." Separate convictions and sentences are appropriate only where the conspiracy embraced objectives "beyond any particular offense" committed pursuant to the conspiracy. State v. Hardison, 99 N.J. 379, 386 (1985). Such is not the case here, and consequently we remand for resentencing to reflect merger of the conspiracy charge into the charge of armed robbery.
Finally, defendant contends that the trial judge erred when she determined not to sentence defendant to a term appropriate to a crime one degree lower than first-degree armed robbery. Prior to sentencing, defendant requested the judge sentence him as a second-degree offender on the first-degree armed robbery conviction. See N.J.S.A. 2C:44-1(f)(2)(permitting the judge to "sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted" when "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands"). In considering such a request, a court should apply a two-step process by which it "must be clearly convinced that the mitigating factors substantially outweigh the aggravating ones and that the interest of justice demands a downgraded sentence." State v. L.V., 410 N.J. Super. 90, 109 (App. Div. 2009) (quoting State v. Megargel, 143 N.J. 484, 496 (1996) (internal quotation marks omitted)), certif. denied, 201 N.J. 156 (2010). "The reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." Megargel, supra, 143 N.J. at 505.
The judge identified two aggravating sentencing factors: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The judge identified two mitigating sentencing factors: defendant has no prior criminal record, N.J.S.A. 2C:44-1(b)(7); and defendant would be likely to respond affirmatively to probationary treatment, N.J.S.A. 2C:44-1(b)(10). The judge specifically did not find that the mitigating factors "substantially" outweighed the aggravating factors.
Our standard of review of the trial court's sentencing determinations is limited. If a sentencing court properly identifies and balances the applicable aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); Megargel, supra, 143 N.J. at 493-94. A sentence that is so imposed, consistent with the guidelines, should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 611-12 (2010) (discouraging appellate courts from "second-guessing" the sentencing assessments of trial judges that are based upon the pertinent aggravating and mitigating factors).
Applying this limited standard of review, we find no reason to disturb the sentence imposed by the trial court. The sentence does not shock the judicial conscience. The trial court adequately took into account defendant's background in imposing a custodial term that was at the lowest end of any of the applicable sentencing ranges.
Affirmed, except we remand for resentencing to reflect the merger of the conspiracy charge into the armed robbery conviction.
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