November 25, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
EUGENIO BRITO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-06-1005.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Special Deputy Attorney
General/Acting Assistant Prosecutor, on the brief).
Before Judges Fasciale and Maven.
Following a jury trial, defendant Eugenio Brito was convicted of third-degree attempted burglary, contrary to N.J.S.A. 2C:5-1 and 2C:18-2. The court imposed an extended-term sentence of seven years' imprisonment, with three years of parole ineligibility. The court also imposed appropriate fees, fines, and penalties. We affirm.
The underlying facts are not complex. Detective Ruben Rodriguez testified that on March 28, 2006, around twelve o'clock noon, while driving northbound on Palisade Avenue, Union City past his home, he noticed a man, later identified as defendant, standing between the storm door and the front door of his home. Defendant had something in his hand and appeared to be tampering with the bolt lock. Rodriguez testified he immediately stopped his car when he saw this activity. When defendant saw him stop, defendant exited the doorway and walked southbound on Palisade Avenue until Rodriguez's car cut off his path. Rodriguez approached and identified himself as a police officer. He conducted a pat-down for his safety because he had previously seen an object in defendant's hand. The pat-down revealed a screwdriver in defendant's back pocket.
Rodriguez asked defendant what he was doing at the house and he responded "he knew the people who lived at the house, and he was going there because they were doing work [in] the backyard and he was going to ask them for work." Since it was Rodriguez's house, he knew defendant was lying. He testified he neither knew defendant, nor was he having work done on his home.
Thereafter, Rodriguez called for back-up officers. When they arrived, the officers remained with defendant while Rodriguez inspected the doorway of his house. Rodriguez observed a pry mark on the bolt lock of the door, a bend in the metal trim of the door, and newly-chipped paint. Rodriguez then advised defendant of his Miranda rights and detained him.
At trial, Rodriguez testified as to his observations. The following colloquy transpired:
[State]: [W]hat did you believe he was doing at this door, sir? You said that he wasn't a family member, and he wasn't a friend. What did you believe he was doing?
[Rodriguez]: At the time, I believed he possibly was breaking into my house.
[Defense Counsel]: Objection, Judge. Who knows? There's no knowledge of what he believed he was doing, Judge. He's asking for speculation again.
Following a brief sidebar, the State continued direct examination:
[State]: Detective, based on your own personal knowledge of who should and shouldn't be coming from home, combined with your experience as a police officer - -
[Defense Counsel]: Objection. It's a compound question, Judge.
[Court]: The Court will allow it.
. . . .
[State]: Detective, based on your own personal knowledge of who would and would not be coming out of your home, combining that with your experience as a police officer, what did you believe was . . . going on at your home at that time?
[Rodriguez]: I believed the male possibly was trying to break into my house.
After deliberations, the jury convicted defendant of attempted burglary. This appeal followed.
On appeal, defendant raises the following claims:
I. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT FILING A MOTION TO SUPPRESS THE DEFENDANT'S STATEMENT AND NOT FILING A MOTION TO SUPPRESS THE SEARCH AND SEIZURE OF THE SCREWDRIVER FROM THE DEFENDANT. THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE IT WAS THE RESULT OF INEFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below).
II. THE DEFENDANT'S CONVICTION SHOULD BE REVERSED UNDER THE PLAIN ERROR DOCTRINE BECAUSE THE PROSECUTOR ASKED THE WITNESS A QUESTION THAT CALLED FOR A CONCLUSION TO THE ULTIMATE ISSUE IN THE CASE. (Not Raised Below).
III.THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE COURT COMMITTED ERROR BY PERMITTING THE WITNESS TO GIVE [TESTIMONY] THAT CALLED FOR AN OPINION ON THE ULTIMATE ISSUE IN THE CASE OVER THE OBJECTION OF DEFENSE COUNSEL. (Not Raised Below).
IV. THE CUMULATIVE EFFECT OF THE ERRORS COMMITTED HEREIN REQUIRES THIS COURT TO REVERSE THE CONVICTION AND SENTENCE OF THE DEFENDANT.
V. THE SENTENCE OF THE COURT WAS EXCESSIVE.
Our review of the record leads us to conclude that defendant's contentions are without merit and do not warrant extended discussion, R. 2:11-3(e)(2), except as noted herein.
To establish a prima facie case of ineffective assistance of counsel, defendant must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, defendant must show that defense counsel's performance was deficient. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
New Jersey has adopted the precepts of Strickland. See State v. Fritz, 105 N.J. 42, 58 (1987). Prejudice is not presumed "except in cases exemplified by egregious shortcomings in the professional performance of counsel." Id. at 61. Thus, defendant generally must show "that counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." State v. Nash, 212 N.J. 518, 542 (2013).
"Generally, a claim of ineffective assistance of counsel cannot be raised on direct appeal." State v. Sparano, 249 N.J.Super. 411, 419 (App. Div. 1991). Instead, "defendant must develop a record at a hearing at which counsel can explain the reasons for his conduct and inaction and at which the trial judge can rule upon the claims including the issue of prejudice." Ibid. Our Supreme Court has expressed a "general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Only in the rare instances "when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, " should an appellate court consider the issue of ineffective assistance of counsel on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006).
Defendant contends Rodriguez stopped him without probable cause or reasonable suspicion. He further claims that he had been unlawfully detained and had not been advised of his Miranda rights prior to making a statement. Defendant asserts his counsel failed to file a motion to suppress the statement and the screwdriver. The trial record contains none of the facts essential to an evaluation of defendant's claim, as nothing in the record explains why trial counsel chose not to file a motion to suppress. We therefore conclude that resolving defendant's ineffective-assistance-of-counsel claim involves an analysis of strategic decisions and other evidence that lies outside the trial record. Defendant's ineffective-assistance-of-counsel claim is more appropriate for post-conviction review. We therefore decline to consider it and deem the issue preserved for the post-conviction relief phase. Preciose, supra, 129 N.J. at 460.
We combine points two and three to consider defendant's assertion that the prosecutor impermissibly asked for, and Rodriguez rendered, testimony on the ultimate question that was to be decided by the jury. These claims have no merit.
We review the trial court's evidentiary rulings for an abuse of discretion. State v. Harris, 209 N.J. 431, 439 (2012). Such rulings are not overturned unless a manifest denial of justice has occurred. State v. J.A.C., 210 N.J. 281, 295 (2012). However, "[t]o the extent [a] defendant's argument . . . raises a question of law, . . . our review is de novo and plenary." State v. J.D., 211 N.J. 344, 354 (2012).
Initially, we note defendant did not raise either of these arguments at trial. As the colloquy indicates, counsel's objections challenged the form of the State's questions as compound and calling for a speculative answer. Defendant's counsel did not challenge Rodriguez for rendering an opinion on the ultimate question. Therefore, we will not reverse the trial court's determination unless it constitutes plain error. R. 2:10-2. Plain error is error capable of producing an unjust result. State v. Brown, 190 N.J. 144, 160 (2007).
A lay witness must have personal knowledge of matters on which testimony is given. N.J.R.E. 602. N.J.R.E. 701 permits lay opinion testimony "if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." N.J.R.E. 704.
While the prosecutor's question to Rodriguez was premised, in part, on Rodriguez's experience as a police officer, his response cannot be deemed an expert opinion in light of the surrounding circumstances. Rodriguez testified based on his observations of defendant, and his perceptions and unique knowledge of his property. This testimony could have assisted the jury in understanding what had occurred. Because he observed defendant at the house, and personally heard defendant state the fallacious purpose for being at the house, Rodriguez was competent to render his testimony. Permitting Rodriguez's testimony was not plain error and did not produce an unjust result.
We now examine defendant's challenge of his sentence. In reviewing the trial court's imposed sentence, we defer to the court's exercised discretion when it is "based upon findings of fact that are grounded in competent, reasonably credible evidence, " and which applied "correct legal principles[.]" State v. Roth, 95 N.J. 334, 363 (1984). A sentence may be modified only when an application of the facts to the law shows "such a clear error of judgment that it shocks the judicial conscience." Id. at 364.
We reject defendant's contention that he received an excessive sentence. Defendant's conviction enabled the State to request that the trial court designate defendant a persistent offender and sentence him to a discretionary extended term. See N.J.S.A. 2C:44-3a. Based on defendant's previous twenty-nine arrests and multiple indictable convictions for theft-related offenses, as well as the record before her, the judge found defendant to be a "persistent offender." N.J.S.A. 2C:44-3(9a).
At sentencing, defendant argued for consideration of mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), due to his advanced age (68 years old) and health issues. The trial judge considered the defendant's argument, as well as aggravating factors and the standard for imposing an extended term. The trial judge appropriately applied aggravating factor three, N.J.S.A. 2C:44-1(a)(3), (likelihood of committing another offense), six, N.J.S.A. 2C:44-1(a)(6), (extent of prior record), and nine, N.J.S.A. 2C:44-1(a)(9), (need for deterrence). The judge correctly found no mitigating factors applied.
We are satisfied the extended sentence of seven years' imprisonment, with a three-year period of parole ineligibility, is not manifestly excessive or unduly punitive. It neither represents an abuse of the judge's sentencing discretion, nor shocks our judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); Roth, supra, 95 N.J. at 363-65.