Opinion
DOCKET NO. A-3812-12T2
04-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANNY J. PIRES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Accurso and Manahan. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 11-12-1442. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Danny Pires, appeals from a conviction after a jury trial. Defendant argues his conviction was based upon improper or missing jury instructions, prosecutorial misconduct and improper introduction of evidence. Defendant also argues that the sentence was excessive. We affirm.
A Burlington County Grand Jury returned an indictment charging defendant with second-degree burglary while armed with a deadly weapon, N.J.S.A. 2C:18-2; third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); third-degree aggravated assault, N.J.S.A. 2C:12b(7); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7a. The jury convicted defendant on count one, burglary but entering unarmed intending to commit the offense of simple assault. Defendant was also convicted of the lesser-included offense of simple assault on counts two and three. The State dismissed the remaining counts after the jury failed to reach a verdict on them. Defendant was sentenced to six years in prison with an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA). The applicable fees and penalties were imposed.
On September 8, 2011, at 11:30 p.m., M.D. was in the bedroom of her apartment with E.S., her fiancé. M.D.'s six-year old son, D.P., was asleep in his bedroom. An intruder, wearing a camouflage hat, black shirt, grey sweatpants and blue bandanna over his nose and mouth, entered the bedroom. The intruder, armed with a tire iron, shoved M.D. out of the way and attacked E.S. The intruder dropped the tire iron on the bed during the initial struggle, which then moved out into the hallway, down the stairs and into the living room.
While the struggle continued throughout the apartment, the intruder's hat fell off and his bandana was pulled down to his neck, revealing his face. M.D. and E.S. recognized the intruder as defendant, a long-time acquaintance of M.D.'s, the father of D.P. and a childhood classmate of E.S. Defendant eventually ran out of the residence. E.S. chased defendant but could not catch up to him.
Upon the police's arrival at the apartment, M.D. identified defendant as the intruder, along with the hat and tire iron, which were seized in evidence. The police observed the door to the apartment, locked with a dead bolt and chain lock, had been forced open.
Officer Robert Ettinger responded and employed a canine to track the streets behind M.D.'s apartment complex. While in the course of the tracking, Ettinger observed an individual, identified as Aaron Vennie, sitting inside a parked vehicle smoking a cigarette and talking on his cell phone. Ettinger asked Vennie what he was doing. Vennie responded he was in his vehicle because he was not allowed to smoke in his house. After this exchange with Vennie, Ettinger left the area.
Approximately one and one-half hours after the reported burglary, defendant was observed in Vennie's car by Detective Danielle Han who was on patrol searching for defendant. After effecting a motor vehicle stop, defendant was arrested. The detective obtained consent to search the car which revealed the vehicle's tire iron was missing.
During the trial, defendant testified that at the time of the incident he was at his residence with his brother and Vennie. Defendant further testified the three were drinking and playing Xbox, ran out of beer and went to a local bar, which was closed. Vennie dropped defendant off at another bar, where defendant said he smoked a cigarette outside and realized he did not have his wallet or identification.
According to defendant, he then met up with Amber, a former schoolmate, who invited him to a party at her house. Defendant testified while he was with her he received texts about the burglary at M.D.'s apartment. Defendant had Amber drop him off a few blocks from where he lived because he needed time to think and feared the police would "pull[] a gun on him," based on previous dealings with police. Defendant then called Vennie and asked him to pick him up.
During summation, the prosecutor commented on defendant's testimony:
Makes sense, your six year old's in danger, you want to make sure they're okay. Does he go to [D.P.]'s house? No. Does he go to his own house where he knows the police are looking for him? No. Does he call the police and say, Hey, I heard you're looking for me, I'm with Amber. There's no way I'm involved in all this. He doesn't do any of those things because it's all nonsense. There is your contrived deception.
This mysterious Amber is also his alibi. Because if he was with Amber during this entire time she can vouch for him when he's stopped by the police. But I didn't want to get her involved. Involved in what? You didn't do anything. There is nothing to be involved in, nonsense.
On appeal defendant raises the following arguments:
POINT I
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ART. 1, PAR. 1 OF THE N.J. CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURORS ON THE LAW OF IDENTIFICATION EVEN THOUGH THE IDENTITY OF THE INTRUDER WAS THE CRITICAL CONTESTED ISSUE IN THE CASE (NOT RAISED BELOW)
POINT II
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ART. 1, PAR. 1 OF THE N.J. CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURY ON THE LAW OF ALIBI NOTWITHSTANDING THE FACT THAT ALIBI, AND HENCE MISIDENTIFICATION, WAS THE DEFENDANT'S PRINCIPAL DEFENSE (NOT RAISED BELOW)
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ART. 1, PAR. 1 OF THE N.J. CONSTITUTION WAS VIOLATED BY THE ERRONEOUS, CONFUSING AND PREJUDICIAL INSTRUCTION ON THE LAW OF BURGLARY (NOT RAISED BELOW)
POINT IV
THE DEFENDANT'S RIGHT TO BE FREE FROM SELF-INCRIMINATION WAS VIOLATED BY THE PROSECUTOR'S ARGUMENT THAT SHORTLY BEFORE HIS ARREST THE DEFENDANT SHOULD HAVE CALLED THE POLICE AND PROVIDED THEM WITH HIS EXCULPATORY ACCOUNT (NOT RAISED BELOW)
POINT V
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ART. 1, PAR. 1 OF THE N.J. CONSTITUTION WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL ADMISSION OF FOOTPRINT EVIDENCE TO PROVE IDENTITY
POINT VI
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ART. 1, PAR. 1 OF THE N.J. CONSTITUTION WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL INSTRUCTION ON THE LAW OF ATTEMPT (NOT RAISED BELOW)
POINT VII
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ART. 1, PAR. 1 OF THE N.J. CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT (NOT RAISED BELOW)
POINT VIII
THE SENTENCE IS EXCESSIVE BECAUSE THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS AND UNCONSTITUTIONALLY MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE
We have considered defendant's arguments in light of the record and find them to be without merit. We add only the following.
As a preliminary matter, defendant's arguments, with the exception of the excessive sentence argument, are subject to the plain error standard of review because they were not raised during defendant's trial. See R. 2:10-2. Under that standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result," that is, if it was "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. Taffaro, 195 N.J. 442, 454 (2008) (internal quotation marks omitted) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendant must prove that a plain error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006). Because defendant did not contemporaneously object to those issues he now raises on appeal, he must demonstrate plain error to justify reversal of his conviction. A defendant's failure to object leads to the reasonable inference that the issue was not significant in the context of the trial. Macon, supra, 57 N.J. at 333. As the Court stated in Macon, "to rerun a trial when the error could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage." Id.
The argument raised in Point V regarding the erroneous admission of footprint evidence was addressed at side bar by defendant's counsel. Counsel anticipated testimony from the State's witness connecting the photo of a footprint found on the apartment door with a photo of the sole of defendant's shoe, which he wore on the night of the incident. After defense counsel argued the evidence would lack foundation, the State did not pursue this line of questioning.
We first address defendant's argument that there was error in the jury charge. When an appellant raises error in the jury charge, the charge must be read as a whole; the court will not read just the portion alleged as error. State v. Wilbely, 63 N.J. 420, 422 (1973). All that is necessary is that the entire charge be accurate. State v. Thompson, 59 N.J. 396, 411 (1971). Because defendant failed to object to the charge, a showing of plain error must be made when the defendant claims error on appeal. R. 1:7-2; R. 2:10-2. In considering a jury charge, 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 (1969) (citation omitted), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). However, errors impacting directly on the court's obligation "to assure the jury's impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions . . . are poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979).
Defendant urges that the judge plainly erred due to erroneous instructions to the jury on identification, alibi and on the substantive elements of burglary and attempt. We disagree. The jury charge was legally correct and was appropriately tailored to address the clear and unequivocal evidence adduced during the trial.
The evidence presented during the trial from the victims and law enforcement was overwhelming as to both identification and alibi. M.D. and E.S. each knew defendant prior to the incident through a longstanding history of involvement with him as an acquaintance and intimate partner (M.D.) or classmate (E.S.). They had the opportunity to make observations of him when he was "unmasked" during the melee. Defendant's claim of alibi as to his whereabouts at the critical time was clearly refuted by the compelling testimony relating to identification.
As to the substantive elements of burglary and attempt, the jury instructions here tracked the model charge. The use of a model jury charge is "recommended as a method, albeit not perfect, for avoiding error." Pressler & Verniero, Current N.J. Court Rules, comment 8.1 on R. 1:8-7 (2015); see also State v. Pleasant, 313 N.J. Super. 325, 333-35 (App. Div. 1998), aff'd o.b., 158 N.J. 149, 150 (1999). Even so, at times "it may be necessary for the court to adapt the model jury charge to the facts in evidence, and failure to do so will constitute error." Pressler & Verniero, supra, comment 8.1 to R. 1:8-7. From our review, we conclude the judge gave a thorough charge to the jury as to the elements of burglary and attempt.
We recognize that proper jury charges are essential to a fair trial. State v. Green, 86 N.J. 281, 287 (1981). The judge must give a "plain and clear exposition of the issues." Id. at 288. When reading the charge under scrutiny as to how the jurors were instructed, the charge was in accord with the undisputed trial record. We find no error, much less one "clearly capable of producing an unjust result." R. 2:10-2.
Defendant further contends the prosecutor's statements in summation require reversal. In assessing whether a prosecutor's alleged misconduct requires reversal, we consider that they "are afforded considerable leeway in making opening statements and summations." State v. Echols, 199 N.J. 344, 359-60 (2009) (internal quotation marks omitted). A prosecutor is "entitled to argue the merits of the State's case 'graphically and forcefully.'" State v. Smith, 212 N.J. 365, 403 (2012) (citations omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). For prosecutorial comments "[t]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper," and "so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (internal quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
Prosecutors must act in accordance with fundamental principles of fairness. Id. at 397. They may be zealous in enforcing the law, but must refrain from engaging in "conduct lacking in the essentials of fair play[.]" Id. at 437 (internal quotation marks omitted). Prosecutors "'should not make inaccurate legal or factual assertions during a trial and . . . must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence.'" Id. (quoting State v. Reddish, 181 N.J. 553, 641 (2004)). Further, they may never suggest a shifting of the burden of proof to defendant. See State v. Loftin, 146 N.J. 295, 389 (1996).
Furthermore, in determining whether a prosecutor's statements denied a defendant a fair trial, we must consider whether defense counsel made a "timely and proper objection." State v. Bogen, 13 N.J. 137, 141-42 (1953). If no objection is made, the remarks usually will not be deemed prejudicial. "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999).
The prosecutor's statements were fair comment derived from the evidence, i.e., the defendant's testimony. During cross-examination, defendant testified he did not go to the scene to check on his son or to contact the police. We do not share defendant's view that the prosecutor's comments infringed upon his right to remain silent by referencing his decision not to contact the police. The prosecutor argued that defendant's reason for not contacting police after he knew they were looking for him or for not checking on the welfare of his child was "all nonsense." We view the comment as questioning the credibility of defendant's testimony. Even if the comments could be deemed improper, they were not "clearly and unmistakably improper" nor "so egregious as to deprive defendant of a fair trial." Wakefield, supra, 190 N.J. at 437-38.
We also reject defendant's challenge to his sentence as excessive. Our review of a criminal sentence is limited. State v. Natale, 184 N.J. 458, 489 (2005). "Although appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts, when reviewing a trial court's sentencing decision, an appellate court may not substitute its judgment for that of the trial court." State v. Cassady, 198 N.J. 165, 180 (2009) (internal quotation marks and citations omitted).
Here, we find no abuse of the reasoned discretion afforded to trial judges tasked with sentencing convicted criminals. When "conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and defined by [the Court] . . . they need fear no second-guessing." Cassady, supra, 198 N.J. at 181 (quoting State v. Roth, 95 N.J. 334, 365 (1984)).
All other arguments, not specifically addressed herein, 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