September 23, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JOEL D. CINTRON, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 10, 2013
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-08-0895.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).
Before Judges Koblitz and Accurso.
A jury found defendant Joel D. Cintron guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); third-degree assault by auto while intoxicated, N.J.S.A. 2C:12-1c(2) (count two); and fourth-degree assault by auto while intoxicated, N.J.S.A. 2C:12-1c(2) (count three). The judge merged defendant's convictions under counts one and two, and imposed a ten-year term of imprisonment on count one subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent eighteen-month term on count three.
Defendant raises two issues on appeal.
THE TRIAL JUDGE OMITTED SIGNIFICANT PORTIONS OF THE MODEL JURY CHARGES, COMPLETELY FAILED TO INSTRUCT THE JURY REGARDING STATEMENTS ALLEGEDLY MADE BY [DEFENDANT] AND THE NATURE OF THE MULTIPLE CHARGES AGAINST HIM, AND INCORRECTLY ADVISED THE JURY REGARDING EXPERT TESTIMONY, THEREBY DENYING [DEFENDANT] A FAIR TRIAL. (Not Raised Below).
A. The Judge's Wholesale Abandonment Of The Model Charges Left The Jury Utterly Unable to Fulfill Its Constitutional Function.
B. The Judge's Failure To Instruct The Jury On All Of The Elements Of The Offenses And That It Must Consider Each Charge Separately Denied [Defendant] A Fair Trial..
C. The Judge's Failure To Instruct The Jury Regarding The Inherent Unreliability Of Oral Statements Allegedly Made By [Defendant] Greatly Prejudiced Him..
D. In A Case That Hinged On Witness Credibility, The Judge's Failure To Properly Instruct The Jury On Credibility Was Plain Error.
E. The Judge's Brief And Inaccurate Instruction Regarding Expert Testimony, Given Only In Passing, Left The Jury Uninformed About How To Evaluate Such Testimony.
F. The Cumulative Effect Of The Aforementioned Errors Denied [Defendant] A Fair Trial.
BECAUSE IT WAS NOT THE MOST SERIOUS AGGRAVATED ASSAULT IN ITS CLASS, THE MAXIMUM 10-YEAR TERM IS EXCESSIVE.
Having considered these arguments in light of the record and existing law, we conclude that no claim of error warrants reversal of defendant's conviction for second-degree aggravated assault, and we affirm defendant's sentence on that charge. We reverse defendant's convictions of third-degree and fourth-degree assault by auto and remand for further proceedings on those charges.
On July 14, 2007, at approximately 1:00 a.m., defendant was in a blue Honda Civic traveling north on Route 73 in Palmyra at a high rate of speed. An officer parked on the side of the road clocked the speed by radar at 100 mph. The speed limit on that stretch of road is 45 mph. Shortly thereafter, defendant's car collided with a pickup truck at the intersection of Route 73 and Hylton Road. The front-end of the Civic was very heavily damaged, especially on the passenger side. Several police officers from three different departments responded to the scene. One of the first officers on the scene testified that he saw defendant sitting without a shirt in the driver's seat of the Civic with a woman seated next to him.
When the officer who interviewed defendant arrived, defendant was standing next to the Civic and a woman with a badly injured ankle was sitting on the curb nearby. The officer testified that defendant had a flushed face, watery, bloodshot eyes, and an odor of alcohol about him. The officer asked defendant his name and if he was the driver. He testified that defendant responded, "[y]eah[, ] me and my girl were in it, my name is Joel Cintron." The officer then asked defendant if he were hurt and if he had a driver's license. The officer said that defendant told him he was not hurt and that he had lost his driver's license. Defendant volunteered that his girlfriend had hurt her ankle and that he had lifted her out of the car. The officer testified that as defendant pointed to the woman on the curb, he fell asleep standing up for a couple of seconds.
When defendant awoke, he asked the officer whether the people in the other car were okay. In response to the officer's question about the accident, defendant told him that "they were driving down the road, he didn't see the other car, he hit it, he don't know where it came from, you know, he just didn't see the other car."
The other car was a green Chevrolet pickup truck that had overturned on the median, trapping the driver, James Lehner, inside. Lehner testified that he was slowing for a light on his way to work the night shift at the Coca-Cola Bottling Company when he was hit by the Civic. He suffered extensive injuries in the accident. Lehner broke five ribs, three bones in his left hip, shattered his upper arm and broke his little finger. He also suffered a collapsed lung and spent seventeen days in a medically-induced coma and months in a wheelchair. He was out of work for six months and had not recovered full range-of-motion in his arm at the time of trial.
As paramedics evaluated defendant, the officer turned his attention to the woman on the curb. He testified that her face was flushed and her eyes bloodshot and watery. The officer learned that the woman was Jasmine Gonzalez, and she gave the officer permission to retrieve her identification from her purse in the front seat of the Civic. When the officer did so, he found a small glass vial with "a brown vegetative type substance in it that appear[ed] to be wet, " which he believed to be "marijuana laced with embalming fluid, PCP."
The officer then asked defendant to perform a variety of field sobriety tests, none of which defendant successfully completed. The officer reported that defendant was swaying and his knees were sagging such that it was difficult for him to remain upright. The officer placed defendant under arrest, read him his Miranda rights, and placed him in the back of the patrol car.
Upon arriving at the police station, defendant was again read his rights. He refused the Alcotest saying, "I'm not blowing in that machine so you can see how drunk I am." Defendant did agree to provide a urine sample, although he refused to be led to a private bathroom to do so. Instead, he dropped his pants and told the officers that if they did not bring him a cup, he would urinate on the Alcotest and the floor. Provided with the cup, defendant urinated in the cup, on himself, and on the floor. Afterwards, the officer led him out of the booking area to a bench. The officer testified that defendant began yelling to Gonzalez, who was on the other side of a partition in a holding room, not to cooperate with the officers. He testified that defendant yelled, "[d]on't tell them I was driving, somebody else was driving, don't tell them anything, don't give them anything."
A police accident reconstruction expert testified at trial that if the pickup were traveling at 30 mph as Lehner estimated, then the Civic would have been traveling at 90.71 mph before braking and 66.30 mph at the time of impact. If instead, the pickup were traveling at 45 mph, then the Civic would have been traveling at 78.12 mph before braking and 47.64 mph at the time of impact.
Doctor Richard Cohn testified on behalf of the State as an expert in the field of pharmacology and forensic toxicology. Dr. Cohn testified that defendant's urine tested positive for 374 ng/ml of PCP and 107 ng/ml of marijuana. Dr. Cohn opined that these were "toxicologically significant concentrations" representing "recent intentional intake of those substances." He testified that PCP is a hallucinogenic depressant and that marijuana, likewise, is a central nervous system depressant that acts to slow cognitive functioning and physical reflexes. Dr. Cohn opined that the presence of 25 ng/ml of PCP, or 15 ng/ml of marijuana in one's system is sufficient to inhibit a person's ability to perform safety-sensitive tasks.
Defendant testified on his own behalf. He claimed that he worked until 1:00 a.m. at a pizzeria in Philadelphia when his girlfriend, Gonzalez, picked him up in the Civic. He acknowledged that the police claimed that the Civic was registered to his mother although he denied that was true. He testified he did not know who owned the car and that it must have been owned by a friend of Gonzalez's. Defendant was living with Gonzalez at the time.
Defendant testified that he was asleep at the time of the accident. He suffered no injuries in the crash. He testified, however, that upon awaking after the impact, he jumped from the car and removed his shirt, thinking that he might have been on fire. He admitted telling the investigating officer that he did not see where the car came from, and that he told Gonzalez at the scene to tell them somebody else was driving. Defendant testified that he gave the instruction to protect Gonzalez from making any incriminating statements. Defendant denied that he made a similar statement to Gonzalez at the police station. He claimed that he fell asleep at the station and that the officers had to wake him to take his fingerprints. He also denied that the officers asked him to take the Alcotest or explained the consequences of refusing the test.
The jury convicted defendant of second-degree aggravated assault against Lehner; third-degree assault by auto against Lehner; and fourth-degree assault by auto against Gonzalez. Defendant contends that the trial judge's failure to hew to the wording of the model charges deprived him of a fair trial. We disagree.
We note at the outset that none of defendant's arguments alleging error in the jury instructions were raised to the trial court. We review arguments raised for the first time on appeal under a plain error standard, meaning we disregard such errors unless "clearly capable of producing an unjust result." R. 2:10-2; State v. Daniels, 182 N.J. 80, 95 (2004); State v. Macon, 57 N.J. 325, 337 (1971). One of the reasons we deal with claims of error that could have been, but were not, raised at trial differently from those timely challenged is because "[i]t may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment." Macon, supra, 57 N.J. at 333. In such case, we will reverse a defendant's conviction only if we are convinced that there was error "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Id. at 336.
Although "[a]ccurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial, " State v. Concepcion, 111 N.J. 373, 379 (1988), a defendant is not entitled to have a jury charged in the words of his choosing, State v. Pigueiras, 344 N.J.Super. 297, 317 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002). Moreover, the Constitution does not require that the court use any particular words in advising the jury even on so fundamental an issue as the government's burden of proof. State v. Medina 147 N.J. 43, 51 (1996), cert. denied, 520 U.S. 1190, 117 S.Ct. 1476, 137 L.Ed.2d 688 (1997). The trial judge's obligation is to "instruct the jury as to the fundamental principles of law which control the case." State v. Butler, 27 N.J. 560, 595 (1958). The judge need not do so in the precise language of the model charges, so long as the judge conveys to the jury the fundamental principles guiding their deliberations. State v. Loftin, 146 N.J. 295, 374 (1996).
Our review of the jury instructions in this case convinces us that all but two of defendant's complaints have no factual basis in the record. Specifically, there is no basis in the record for defendant's claims that the experienced trial judge failed to properly instruct the jury on burden of proof, impartiality, unanimity, witness credibility, expert testimony, or that the State had to prove each element of each crime charged beyond a reasonable doubt. Accordingly, we limit our consideration to the two issues defendant raises that have a factual basis in the instructions given.
Defendant claims that the judge erred in failing to give Hampton and Kociolek charges with regard to incriminating statements allegedly made by defendant to the police at the scene and at the police station. The court considered the statements at a N.J.R.E. 104 hearing and determined that they were voluntary and admissible. Although defense counsel requested a Hampton charge at the 104 hearing, he did not renew his request at the charge conference. Notwithstanding, the Supreme Court has held that "unless a defendant specifically requests that the Hampton charge not be given, and the trial court satisfies itself with written findings that such reasons have merit, a Hampton charge should always be given." State v. Jordan, 147 N.J. 409, 425 (1997). The Court has likewise held that a Kociolek charge should be given whether or not requested. Id. at 428.
The failure to give the charges, however, is not always reversible error. Id. at 425, 428. A reviewing court will only reverse when their omission is clearly capable of producing an unjust result in the context of the entire case. Id. at 425, 429. If the statements are unnecessary to prove the defendant's guilt "because there is other evidence that clearly establishes guilt, or if the defendant has acknowledged the truth of his statement, " the failure to give a Hampton charge will not require reversal. Id. at 425-26. Likewise, whether the failure to give the Kociolek charge constitutes plain error, "will depend on the facts of each case." Id. at 428.
As defendant never contested that he was significantly impaired, and the injuries to Lehner and Gonzalez were well-established, the issue facing the jury was whether defendant was driving the Civic at the time of the accident, or whether Gonzalez was driving as defendant claimed. The trial judge provided the jurors with a general instruction of the factors it should consider when weighing a witness's credibility, and also delivered a very specific charge with regard to assessing conflicting testimony.
There is no question that the jury was squarely confronted with the issue of the credibility of defendant's statements to the police at the scene and the police station. Accordingly, both the Hampton and Kociolek charges should have been given. But there was also substantial additional evidence of defendant's guilt apart from his statements. One of the first officers responding to the scene testified that he saw defendant in the driver's seat of the Civic with Gonzalez seated in the passenger seat next to him. The State also introduced pictures depicting the significant damage to the front-end of the Civic, most of it on the passenger side. Gonzalez's injury, a broken right ankle, was thus consistent with being a front seat passenger. Defendant also admitted telling Gonzalez to tell the police that somebody else was driving. He only denied the location where that statement was made. Although both the Hampton and Kociolek charges should have been given, we do not find that their absence had the capacity to bring about an unjust result in light of the other evidence of defendant's guilt on this record.
We are convinced, however, that defendant's convictions for third-degree assault by auto against Lehner and fourth-degree assault by auto against Gonzalez cannot stand. Defendant was charged in count two with third-degree assault by auto, N.J.S.A. 2C:12-1c(2); and in count three with fourth-degree assault by auto, N.J.S.A. 2C:12-1c(2). A person is guilty of third-degree assault by auto if a person drives a vehicle in violation of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4a and serious bodily injury results. N.J.S.A. 2C:12-1c(2). A person is guilty of fourth-degree assault by auto if a person drives a vehicle in violation of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4a and bodily injury results. Ibid.
The judge, however, only charged the jury that should it find that defendant operated a motor vehicle in violation of N.J.S.A. 39:4-50, it could consider that together with all other evidence when deciding whether he operated a motor vehicle recklessly. The judge did not charge that the jury was required to find a violation of N.J.S.A. 39:4-50 or 39:4-50.4a in order to convict defendant of N.J.S.A. 2C:12-1c(2) on counts two and three. Thus, defendant's convictions of assault by auto under N.J.S.A. 2C:12-1c(2) on counts two and three must be reversed.
As there was sufficient evidence in the record to find a violation of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4a, and thus to sustain convictions under N.J.S.A. 2C:12-1c(2), State v. Reyes, 50 N.J. 454, 458-59 (1967), we reverse defendant's convictions for third-degree assault by auto, N.J.S.A. 2C:12-1c(2) (count two) and fourth-degree assault by auto, N.J.S.A. 2C:12-1c(2) (count three) and remand for further proceedings on those charges.
We have considered the arguments defendant has offered to establish that his sentence for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one), is excessive and determined that they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Defendant had twenty adult arrests. Among his nine superior court and municipal court convictions were three convictions for driving on the revoked list and one conviction for driving under the influence, all post-dating the accident at issue in this case. The judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Affirmed in part; reversed in part and remanded for further proceedings on counts two and three. We do not retain jurisdiction.