Opinion
DOCKET NO. A-2341-13T1
02-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JUAN CLAUDIO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Samuel Feder, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Lillian Kayed, Assistant prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-01-0116. Joseph E. Krakora, Public Defender, attorney for appellant (Samuel Feder, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Lillian Kayed, Assistant prosecutor, on the brief). PER CURIAM
In October 2013, a jury convicted defendant Juan Claudio of two counts of third-degree burglary, N.J.S.A. 2C:18-2, (counts one and two), and one count of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a), (count three). On October 11, 2013, he was sentenced on count one to a ten-year term of imprisonment, with a five-year period of parole ineligibility. On count two he was sentenced to a term of imprisonment of five years, with a two-and-a-half-year period of parole ineligibility, and on count three to a five-year term of imprisonment with no parole disqualifier. The sentences for counts two and three run concurrently but the sentence for count one runs consecutively to those other counts.
The reasons for the one-year delay in sentencing defendant are not pertinent to the issues on appeal.
In this appeal defendant contends the trial court erred because it (1) failed to instruct the jury that it was prohibited from using evidence of another crime to find defendant had a propensity to commit a crime; (2) denied defendant's motion for acquittal, in which defendant argued the area of the building where he had allegedly committed a burglary was open to the public; and (3) imposed an excessive sentence. We reject these arguments and affirm.
I
The pertinent evidence at trial is as follows. Charles Clark's spouse is the owner of a six-family-unit dwelling located in Harrison. Clark and his wife occupy one of the units in this building, and the remaining units are occupied by family or friends of the family. Clark testified there are two front entrances to the building. There is an exterior door that is kept unlocked and leads into a vestibule where the occupants' mailboxes and the doorbells to each unit are located. There is also an inner door, which leads from the vestibule into the hallway where the door to each of the six apartments is located. The inner door is locked at all times. Clark testified that although mail carriers and delivery persons may enter the vestibule, other members of the public may not.
During the morning of June 14, 2011, Clark was looking out of a window in his apartment when he noticed a man, later identified as defendant, exit the exterior door and walk to a car parked halfway down the block. The exterior door was five feet from Clark's window. After defendant retrieved an object from the car, Clark watched him walk back into the building. Clark initially assumed defendant was visiting one of the occupants. However, minutes later Clark heard noise coming from an upstairs apartment rented by a tenant who Clark knew was likely not at home. Clark telephoned but could not reach the tenant, and left a voicemail requesting the tenant to call him back.
Meanwhile, Clark saw defendant walk out of the exterior door carrying a box that appeared to have once packaged either a television or computer. Clark yelled out to defendant and asked where he was going, but defendant ignored Clark and got into the car and drove off. The tenant then called Clark and confirmed he was not at home. Clark immediately called the police. The tenant returned home and discovered various items were missing from his apartment, including his computer. There was also damage to the tenant's apartment door consistent with an attempt to break into the apartment.
Clark testified the inner front door to the building "was jammed up with a screwdriver, all chopped up in there." After the June 2011 incident, Clark installed a door guard and a new dead bolt on the inner door. He also installed five security cameras, one of which viewed a portion of the vestibule. The monitor for the cameras was in Clark's apartment.
About two months later, during the morning of August 26, 2011, Clark was in his apartment when he heard three loud bangs. He looked at the monitor but did not see anything of significance, but the camera in the vestibule was not pointed at the inner door. Defendant then came into view on the monitor and it was clear he was in the vestibule. Clark then saw defendant exit the vestibule and leave the property. As defendant walked away, Clark observed him put what appeared to be a screwdriver in his back pocket.
Clark called the police, who apprehended defendant on an adjacent property that same day. Clark testified the wood on the inner door in the vestibule was "chipped up" more than it had been before defendant entered the vestibule and that there were new scratches on the door guard. Clark told the police defendant was the person who had been inside the vestibule that day, as well in the tenant's apartment on June 14, 2011. Clark also testified that neither he nor, to his knowledge, the tenants in the building had ever invited defendant to the premises.
After the close of evidence, defendant moved for, among other things, a judgment of acquittal, see Rule 3:18-1, on the ground the State failed to prove he committed a burglary, see N.J.S.A. 2C:18-2(a), during the August incident. Specifically, defendant contended the vestibule was open to the public, see N.J.S.A. 2C:18-2(a)(1). Mindful of the standard it was mandated to apply on a motion for judgment of acquittal, see State v. Reyes, 50 N.J. 454, 458-59 (1967), which requires a court to give the State the benefit of all its favorable testimony as well as the favorable inferences that can be drawn from such testimony, the trial court concluded that a reasonable jury could find beyond a reasonable doubt that the vestibule was not open to the public, and denied the motion.
N.J.S.A. 2C:18-2(a) provides that a person is guilty of burglary if, with purpose to commit an offense therein or thereon he:
(1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter;
(2) Surreptitiously remains in a research facility, structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so; or
(3) Trespasses in or upon utility company property where public notice prohibiting trespass is given by conspicuous posting, or fencing or other enclosure manifestly designed to exclude intruders.
Notably, defendant did not move before trial to sever the charges, see Rule 3:15-2(b), arising out of the June incident from those arising out of the August incident. However, after both counsel delivered closing arguments but before the court read its charge to the jury, defense counsel addressed the court as follows:
It occurred to me that possibly there should be something read to the jurors regarding
the June 14th [incident] in relation to a prior bad act. . . If they accept . . . the evidence that has been shown on June 14th[,] they can't just take that and then find Mr. Claudio guilty. . . I would like an instruction advising them how to use that, because it is -- would be considered at that point a prior bad act.
The court responded that the jury was going to be instructed to consider each count in the indictment individually. The court further stated that the June incident could not be a prior bad act in this prosecution because the offenses arising out of that incident were charged offenses. The instruction to which the court was referring and ultimately read to the jury was the Model Jury Charge (Criminal), "Criminal Final Charge, Multiple Charges" (2002). The court instructed the jury in accordance with the model charge as follows:
There are three offenses charged in the indictment. They are separate offenses by separate counts in the indictment. In your determination of whether the State has proven the defendant guilty of the crimes charged in the indictment beyond a reasonable doubt, the defendant is entitled to have each count considered separately by the evidence which is relevant and material to that particular charge based on the law as I will give it to you.
After covering other topics, the court further charged this reminder:
If you find the State has proved the crime charged and each of its elements beyond a reasonable doubt, then you must find the
defendant guilty. And I'll remind you once again, there's two burglary counts in the indictment as I've previously constructed. Each one of those must be considered based separately on the facts as it relates that was presented in this case.As indicated above, the jury found defendant guilty of all charged offenses for the two incidents.
We assume the judge intended to say "instructed" or did use this word and was misunderstood by the court reporter. --------
At the time of sentencing, the court granted the State's motion for an extended term as a persistent offender under N.J.S.A. 2C:44-3(a). The court found - and defendant does not dispute on appeal - that his criminal record, which includes fifteen indictable convictions, made him eligible to be sentenced in accordance with the latter statute as a persistent offender. The court imposed an extended term on count one for third-degree burglary, ordering defendant to serve a ten-year term of imprisonment, with a five-year period of parole ineligibility. The court found the following aggravating factors applied: three, N.J.S.A. 2C:44-1(a)(3)(risk of defendant committing another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and seriousness of offense); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others). The court rejected defendant's argument that any mitigating factors applied.
II
On appeal, defendant raises the following arguments for our consideration:
POINT I — THE COURT ERRED IN FAILING TO PROVIDE THE JURORS WITH A LIMITING INSTRUCTION INFORMING THEM THAT THEY COULD NOT USE OTHER CRIMES EVIDENCE TO INFER A CRIMINAL PROPENSITY.
A. The Law Regarding Intrinsic "Other Acts" Evidence, And The Acts Intrinsic To The Offenses In This Case.
B. In Relation To Each Other, The August And June Offenses Were Not Intrinsic, But Were "Other Acts" Evidence Subject To Rule 404(b).
C. Extrinsic "Other Crimes" Evidence Requires A Limiting Instruction.
D. A 404(b) Limiting Instruction Is Required Where The "Other Bad Acts" At Issue Are Charged In The Same Indictment.
E. A Limiting Instruction Was Requested, And The Failure To Provide One Was Not Harmless.
POINT II — THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT ONE BECAUSE THE UNLOCKED VESTIBULE OF A MULTI-UNIT APARTMENT BUILDING IS OPEN TO THE PUBLIC.
POINT III — MR. CLAUDIO'S SENTENCE ON COUNT ONE, THE MAXIMUM POSSIBLE SENTENCE WITHIN THE EXTENDED-TERM RANGE, IS BASED ON SEVERAL ERRORS BY THE TRIAL COURT AND IS EXCESSIVE.
A. The Trial Court Double-Counted The Defendant's Criminal Record As A Basis For A Persistent Offender Extended Term, Aggravating Factors 3, 6, And 9, The Maximum Possible Parole Disqualifier, And The Maximum Possible Sentence Within The Extended-Term Range.
B. In Focusing Almost Exclusively On The Defendant's Criminal Record, The Trial Court Failed To Adequately Address The Facts of The Instant Offense.
As for the first argument point, defendant argues the trial court erred for failing to give the model instruction on the use of other crimes and wrongs evidence under N.J.R.E. 404(b). See Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs or Acts (N.J.R.E. 404(b))" (2007). We disagree. It is not necessary to give a Rule 404(b) instruction where, as here, there is evidence of multiple charged offenses that have been joined for trial, and we reject defendant's attempt to require such instruction.
Rule 404(b) addresses "uncharged" crimes, wrongs, or acts. State v. Rose, 206 N.J. 141, 179-80 (2011). If evidence of an uncharged crime, wrong or act is admitted during a trial, "limiting instructions must be provided to inform the jury of the purposes for which it may, and for which it may not, consider the evidence of defendant's uncharged misconduct." Id. at 161 (emphasis added).
Here, all of the offenses about which the jury heard evidence were charged crimes for which defendant was being prosecuted during the trial. These charged offenses were not admitted pursuant to Rule 404(b), which does not govern the admission of evidence of charged crimes. Were that the case, in any trial in which two or more charged offenses were joined, a Rule 404(b) limiting instruction would be required.
In the case of multiple charged offenses that have not been severed, a court is to deliver the model charge regarding separate consideration of each count, which is what the trial court properly did here. See State v. Pitts, 116 N.J. 580, 603 (1989) (stating that in the case where multiple charges are joined, it is "adequate" if the court "caution[s] the jurors to deliberate separately on each of the twelve counts, and to return a judgment of conviction only if convinced that each element of the individual counts had been proved beyond a reasonable doubt").
To be sure, the Court in Pitts also stated that "it would have been preferable . . . for the trial court to have emphasized to the jury its duty to avoid any negative or prejudicial impressions that might otherwise be created by the joinder of several criminal charges in a single indictment." Ibid. However, the Court has not yet required a Rule 404(b) instruction for offenses that are joined as charged crimes, id. at 602-03, and defendant has failed to provide us with any authority to the contrary. We are satisfied the multiple-charges instruction given here — which the court essentially repeated a second time - was appropriate and sufficient under the facts of this case.
After carefully considering the record and the briefs, we conclude defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
The State acknowledges that subsections (2) and (3) are inapplicable here.