Opinion
DOCKET NO. A-4157-11T4
05-22-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARKUS A. CRUZ, a/k/a MARKUS ANTONIO CRUZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Matthew P. Tallia, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Carroll.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-02-00251.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Matthew P. Tallia, on the brief). PER CURIAM
Tried to a jury, defendant Markus A. Cruz appeals from his conviction for first-degree use of a juvenile to commit a criminal offense, N.J.S.A. 2C:24-9 (count one); second-degree robbery, N.J.S.A. 2C:15-1 (count two); third-degree burglary, N.J.S.A. 2C:18-2 (count three); and third-degree terroristic threats, N.J.S.A. 2C:12-3b (count four).
Defendant was sentenced on January 4, 2011, to a ten-year prison term on count one. On count two, the court imposed a consecutive five-year term, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced to concurrent three-year terms on counts three and four, although the judge stated that count four was to merge with count two. The court also imposed appropriate fines, penalties and costs, and defendant was ordered to pay $1180 in restitution to the victim. A Judgment of Conviction (JOC) memorializing defendant's sentence issued on January 5, 2011. Mistakenly, the JOC reflected that defendant's aggregate custodial sentence was ten, rather than fifteen, years.
A series of amended JOCs thereafter issued. For reasons that are unclear from the record, the JOC was amended on April 1, 2011, to provide that defendant's sentence on count one was subject to NERA. On March 2, 2012, the JOC was again amended to correct defendant's aggregate custodial term to fifteen years. Neither defendant nor his counsel appear to have been present for either amendment.
Defendant filed a motion for reconsideration of sentence on April 19, 2012, urging that his custodial sentence on count two run concurrent rather than consecutive to the term imposed on count one. Following oral argument on August 1, 2012, the court issued a written opinion and order granting defendant's motion. Another amended JOC issued, reflecting the concurrent sentences, but leaving the prior JOCs unchanged.
On appeal, defendant raises the following arguments:
I. N.J.S.A. 2C:43-7.2 (NO EARLY RELEASE ACT) DOES NOT APPLY TO THIS OFFENSE (Not able to be raised below)After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm defendant's conviction and sentence, although a remand is required for a correction of the judgments of conviction so as to vacate the April 1, 2011 amendment, and to reflect the merger of count four with count two.
II. N.J.S.A. 2C:24-9 "USE OF 17-YEAR-OLD OR YOUNGER TO COMMIT CRIMINAL OFFENSE" IS VAGUE AND OVERBROAD (Not raised below)
III. THE TRIAL COURT ERRED IN DENYING A MOTION FOR JUDGMENT OF ACQUITTAL ON THE "USE OF 17-YEAR-OLD OR YOUNGER TO COMMIT CRIMINAL OFFENSE" COUNT
IV. DEFENDANT WAS UNAWARE THAT HE FACED A N.E.R.A. SENTENCE ON COUNT ONE AND THUS FUNDAMENTAL FAIRNESS DICTATES THAT HE BE ALLOWED TO ACCEPT THE PREVIOUSLY EXTENDED PLEA OFFER (Not able to be raised below)
V. DISPARITY BETWEEN THE SENTENCE OF THE DEFENDANT AND THE CO-DEFENDANT SHOULD RESULT IN RESENTENCING (Not raised below)
VI. THE ERRORS IN THE JUDGMENT OF CONVICTION MUST BE CORRECTED
VII. A RESTITUTION HEARING IS REQUIRED FOR A DETERMINATION OF THE VALUE OF THE ITEMS STOLEN AND OF MR. CRUZ'S ABILITY TO PAY (Not Raised Below)
Defendant concedes this point will be moot if this court remands the matter to the trial court to correct the erroneous JOC.
I.
The State alleged that defendant, age eighteen, accompanied by a sixteen-year-old juvenile, K.T., robbed and burglarized Jose Almeyda in the early morning hours of August 16, 2008. After patronizing two bars, Almeyda, then age sixty, was walking home around 2:30 - 3:00 a.m. when he was accosted by defendant and K.T. Almeyda attempted to flee, but was unable to due to a lingering knee injury. K.T. then struck him in the shoulder with a stick. Almeyda pleaded with the defendants not to hit him again, and he threw his wallet on the ground, which K.T. picked up. According to Almeyda, the wallet contained between $100 and $110.
After the two examined Almeyda's wallet and located his debit card, they demanded that Almeyda go to a nearby bank to withdraw money from the ATM. Almeyda testified that defendant threatened to kill him if he had no money. The two then returned Almeyda's wallet and walked him to the bank under threat of force. Almeyda went inside the ATM vestibule, but because he was nervous, he could not remember his PIN number and was therefore unable to withdraw any money despite multiple attempts. Defendant again threatened to kill Almeyda if he could not remember the PIN number. Almeyda testified that defendant appeared to be the leader, as he was interacting and conversing with him more than K.T. While Almeyda was inside the vestibule, K.T. was outside.
After trying to run away but being apprehended by the two again, Almeyda then attempted to appease defendant and K.T. by informing them that he had valuables and money at his home. Defendant advised Almeyda that he "shouldn't do anything funny." Along the trip home, defendant stuck a key into Almeyda's back, and placed his hands on Almeyda's neck to throw him to the ground and choke him. Almeyda pleaded with defendant not to kill him because he had children and money at home.
Defendant and K.T. then accompanied Almeyda inside when they eventually arrived at his apartment. Defendant took Almeyda's coin collection allegedly worth over $500, his cell phone, and some music C.D.'s. Before defendant and K.T. left, defendant threatened Almeyda not to call the police or else he would kill him since he knew where he lived. Nonetheless, after the pair left, Almeyda called the police from the land-line telephone in his home. The stolen items were never recovered, including the coin collection, which was most important to him as he had begun collecting the coins as a teenager.
On cross-examination, Almeyda again explained that it was K.T., rather than defendant, who demanded the money from him and hit him with a stick. He also clarified that the only reason he told defendant and K.T. that he had money at home was because defendant threatened to kill him if he could not retrieve any money from the ATM.
Detective Jim Vargas testified that after obtaining the ATM surveillance video from the bank, he reviewed it and was able to identify both K.T. and defendant. During his testimony, Almeyda viewed the surveillance footage and recounted the events as they occurred on film.
After the State rested, defendant moved for a Judgment of Acquittal under Rule 3:18-1, which the trial judge denied. Defendant then rested without calling any witnesses. On November 18, 2010, the jury returned a verdict of guilty on all counts. This appeal followed.
II.
We first address the challenges to defendant's conviction, raised in Points II and III of his brief. Defendant initially contends that the trial court erred in denying his motion for a judgment of acquittal on count one at the close of the State's evidence. Specifically, defendant argues that the State failed to prove that defendant exercised control over K.T. sufficient to support a conviction under N.J.S.A. 2C:24-9, which provides in relevant part:
a. Except as provided in P.L. 1991, c.81 (C.2C:20-17) and N.J.S. 2C:35-6, any person who is at least 18 years of age who knowingly uses, solicits, directs, hires, employs or conspires with a person who is in fact 17 years of age or younger to commit a criminal offense is guilty of a crime.
We use the same standard as the trial judge in reviewing a motion for judgment of acquittal pursuant to Rule 3:18-1. State v. Bunch, 180 N.J. 534, 548-49 (2004). We must determine
whether, 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).]
Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J. 473 (1978). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).
Guided by these standards, we conclude that defendant's motion for a judgment of acquittal was properly denied. As a preliminary matter, defendant concedes that defendant's and K.T.'s respective ages were properly established, both by the introduction of their birth certificates and Det. Vargas' testimony. There is also ample evidence in the record that neither defendant nor K.T. acted alone, but rather they conspired to rob Almeyda and burglarize his home. Importantly, Almeyda testified that defendant appeared to be the leader, as he was "interacting and conversing" with him more than K.T.
We likewise reject defendant's argument that N.J.S.A. 2C:24-9 should be invalidated as "vague" and "overbroad." The vagueness doctrine "'is essentially a procedural due process concept grounded in notions of fair play.'" State v. Lee, 96 N.J. 156, 165 (1984) (quoting State v. Lashinsky, 81 N.J. 1, 17 (1979)). "A statute or regulation is facially unconstitutional for vagueness if it 'either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.'" Karins v. City of Atl. City, 152 N.J. 532, 541 (1998) (quoting Connally v. Gen. Const. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926)). The doctrine requires that "laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S. Ct. 1186, 1193, 71 L. Ed. 2d 362, 371 (1982).
In support of his argument that the statute is void for vagueness, defendant contends that (1) no reasonable person can determine its proscribed conduct; and (2) the term "conspires with," contained in N.J.S.A. 2C:24-9, is undefined and is thus unconstitutionally vague. We disagree. Rather, the statute is sufficiently clear on its face to warn individuals of the conduct that it prohibits. Moreover, the statute incorporates by reference the definition of "conspiracy" found in N.J.S.A. 2C:5-2:
a. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
In the present case, the jury was given the following model jury charge for Count One:
In order for you to find the defendant guilty of this offense, the State must prove each of the following elements beyond a reasonable doubt:
1) That the defendant was at least 18 years of age;
2) that the defendant knowingly used, solicited, directed, hired, employed or conspired with [K.T.] to commit or aid in the commission of the crime; and
3) That [K.T.] was in fact 17 years of age or younger.
After instructing the jury on the term "conspire," the judge also clarified that the mere fact that a juvenile and an adult are participants in the same criminal act is insufficient to prove the offense, but rather, the State must prove that defendant used, solicited, directed, hired, employed or conspired with [K.T.]. Both on its face and as applied to the facts of this case, the statute was not unduly vague.
For similar reasons, we reject defendant's argument that the statute is constitutionally overbroad. A statute is overbroad if it reaches a "'substantial amount of constitutionally protected conduct.'" State v. Walker, 385 N.J. Super. 388, 402 (App. Div.) (quoting Village of Hoffman Estates, supra, 455 U.S. at 494-95, 102 S. Ct. at 1191, 71 L. Ed. 2d at 369 (1982)), certif. denied, 187 N.J. 83 (2006). "The standard is . . . whether the reach of the law extends too far in fulfilling the State's interest." Lee, supra, 96 N.J. at 165. Defendant argues that the statute is overbroad because it punishes any conduct by an adult and a juvenile based upon their mere agreement to commit a crime. However, as we have noted, the model jury charge, given in this case, clearly instructs that "[t]he mere fact that a juvenile and an adult are participants in the same criminal act is insufficient to prove this element of the offense."
III.
We next address the sentencing arguments raised in Points I, IV, V, VI, and VII of defendant's brief.
Defendant argues that his sentence should be reduced one degree due to the disparity between his adult sentence and K.T.'s juvenile sentence. We find insufficient merit in this argument to warrant extended discussion in a written opinion, R. 2:11-3 (e)(2), and only add the following brief comments.
K.T. pled guilty in juvenile court, and received an eighteen-month probationary sentence. While K.T.'s circumstances are unknown, defendant had an extensive juvenile record, consisting of seven juvenile offenses and four violations of his juvenile probation. At the time of sentencing, he had pending adult charges in Perth Amboy Municipal Court for disorderly conduct, and in Carteret Municipal Court for criminal mischief. At sentencing, the judge carefully analyzed the aggravating and mitigating factors, finding three aggravating factors applicable: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9), and that the offense was committed against someone who was sixty years of age or older, N.J.S.A. 2C:44-1(a)(12). The judge also applied three mitigating factors: N.J.S.A. 2C:44-1(b)(6), defendant will compensate his victim, N.J.S.A. 2C:44-1(b)(9), defendant's character and attitude indicate he is unlikely to commit another offense, and N.J.S.A. 2C:44-1(b)(11), imprisonment would entail excessive hardship to himself or his dependents. The judge concluded that the aggravating factors outweighed the mitigating. Notwithstanding, he imposed the minimum sentence on the first degree offense with which defendant alone was charged.
We will only modify sentences "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). Defendant, unlike K.T., was convicted under the Code of Criminal Justice of a first-degree crime. The court's findings as to aggravating and mitigating factors are supported by the record. Therefore, the sentence imposed does not shock the judicial conscience. Ibid.
For the first time on appeal, defendant challenges the trial court's award of $1180 restitution to the victim, arguing that a hearing is required to determine the value of the items stolen and his ability to pay. However, at sentencing, defendant did not contest the amount of the restitution ordered by the court, or contend that he would be unable to pay that amount within a reasonable time following his release. "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). Although under the plain error rule we will consider allegations of error not brought to the trial court's attention that have a clear capacity to produce an unjust result, State v. Macon, 57 N.J. 325, 337-39 (1971), we generally decline to consider issues that were not presented at trial. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Because defendant did not challenge the restitution award at sentencing, we therefore decline to consider it.
Finally, we address errors in the various judgments of conviction. At sentencing on January 4, 2011, the court imposed a ten-year term of imprisonment on count one, with no parole ineligibility period under NERA. For some unexplained reason, the JOC was amended on April 1, 2011 to include a parole ineligibility period pursuant to NERA, which appears to have been carried through on subsequent JOCs that thereafter followed. Defendant argues, and the State concedes, that the crime of using a juvenile to commit a criminal offense is not one of the enumerated offenses to which NERA applies under N.J.S.A. 2C:43-7.2. Accordingly, remand is necessary to correct the JOC to vacate the period of parole ineligibility imposed under the April 1, 2011 amendment.
Defendant also contends, and again the State acknowledges, that at sentencing the court correctly merged count four with count two. Since the JOC improperly indicates the imposition of a concurrent sentence on count four, we remand to the sentencing court to amend the JOC to reflect this merger.
Affirmed in part; remanded in part to amend the judgment of conviction in accordance with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION