Opinion
DOCKET NO. A-4483-12T3
07-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CARLOS E. MENDEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Jonathan M. Carrillo, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-06-1091. Joseph E. Krakora, Public Defender attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Jonathan M. Carrillo, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Carlos E. Mendez appeals his conviction of fourth-degree criminal sexual contact. He contends irrelevant and prejudicial testimony was improperly admitted that violated his right to a fair trial. We disagree and affirm.
I
On February 27, 2013, a jury convicted defendant of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). On April 12, 2013, defendant was sentenced to a one-year flat term.
The material evidence adduced at trial was as follows.
On December 15, 2011, S.K.P. got onto a bus in Clifton that was headed for the Port Authority Bus Terminal in Manhattan. When she boarded the bus, she sat in a seat next to the window on the left-hand side of the bus; the aisle seat next to her was empty. She fell asleep but awoke when she felt something on her right inner thigh. She looked down and saw that the passenger in the adjacent seat, later identified as defendant, was firmly rubbing her upper thigh near her genitals.
We use initials to protect the victim's privacy. --------
S.K.P. grabbed defendant's hand and pushed it away. He resisted, necessitating that she use force to move his hand away. She yelled obscenities, hit him in the head and told him she was going to press charges. She tried to get out of her seat to get to the aisle, but defendant would not shift his position to enable her to get to the aisle. S.K.P. kicked and pushed defendant into the aisle and ran to the bus driver. She told the driver what occurred and asked him to have the police waiting at the bus when it pulled into the terminal.
S.K.P. remained standing near the bus driver until the bus came to a stop, although at one point she went back to and yelled at defendant "a few more times," and told him that he was going to go to jail. She announced to the other passengers that there was a "pervert" on board, and that the women should look at him so they would know not to sit next to him. Defendant never denied that he touched her.
When the bus arrived at Port Authority, S.K.P. got off and reported the incident to a police officer with the Port Authority of New York and New Jersey. The officer removed defendant from the bus, but the other passengers were required to remain on board until additional police officers arrived. At one point, S.K.P. re-boarded the bus, expecting the other passengers to be angry with her for delaying their disembarkment. However, when she entered the bus, a woman in the front row stood up, hugged her, and told her she had done "the right thing." The other passengers clapped.
During her testimony the prosecutor asked S.K.P. how she felt when defendant put his hand on her thigh. Defendant objected, but the court permitted the question after the State explained it needed to establish that S.K.P. had not consented to defendant's actions. S.K.P. then testified as follows:
I kind of went through a whole slew of emotions. To be honest with you, I think
the initial was shock and — and kind of disbelief. I just, you know, — I was asleep. And so when you wake up, first of all, you're waking up and you just never think someone is actually going to do this to you. And I was really mad. And then when he wouldn't let me out, I was — I — I mean, look at him. He's not a big guy, but I was so scared.
And I can't even get on a bus anymore. I can't — if I get on a bus, I look to sit next to a girl, because I'm freaked out to this day. And I'm — you have to understand that's not my personality. I've always been that tough girl that could take — you know, like people would have thought I would have put him in the ICU, but I just — I was so scared. And now I can't even ride the bus like a normal person.
[(emphasis added).]
Defendant did not introduce any evidence at trial.
II
On appeal, defendant argues:
POINT I - THE ADMISSION INTO EVIDENCE OF IRRELEVANT AND PREJUDICIAL MATTERS VIOLATED MR. MENDEZ'S RIGHTS TO CONFRONTATION AND A FAIR TRIAL. (U.S. Const. Amends. VI and XIV; N.J. Const. (1947), Art. I, Pars. 1, 9 and 10).
In his brief, defendant contends the testimony that a passenger commented that S.K.P. "had done the right thing" after reporting the incident to the police, causing the other passengers to applaud her, was inadmissible hearsay, irrelevant, and prejudicial. Defendant did not object to the testimony. When a party fails to raise an issue at trial, appellate review is governed by the plain error standard. R. 2:10-2. "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." Ibid. We have carefully reviewed the record and are satisfied this testimony was not capable of causing an unjust verdict.
First, there was evidence S.K.P. vociferously pronounced to the other passengers what defendant had allegedly done; meanwhile, defendant remained silent. In context, it was clear the other passengers' reaction was a response to hearing only that which S.K.P. had imparted to them.
Second, there was significant evidence of defendant's guilt. S.K.P.'s testimony was clear and consistent and remained untarnished after cross-examination. The admission of the allegedly prejudicial and irrelevant testimony was harmless in view of the evidence before the jury. See State v. Soto, 340 N.J. Super. 47, 65 (App. Div. 2001), overruled on other grounds, State v. Dalziel, 182 N.J. 494, 504 (2005).
Defendant also maintains that the testimony S.K.P. cannot now ride the bus "like a normal person" was not only irrelevant but also prejudicial, because such testimony induced the jury to feel sympathy for her. Defendant did not object to this testimony and thus the plain error rule, Rule 2:10-2, again applies.
We conclude the subject testimony was not clearly capable of producing an unjust result. Even assuming the testimony that S.K.P. has difficulty riding busses or endeavors to sit next to a female when riding a bus invoked sympathy, the jury was charged that it had a duty to weigh the evidence "without passion, prejudice or sympathy." There is no evidence the jury did not heed this charge. In fact, "[o]ne of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions." State v. Burns, 192 N.J. 312 (2007) (citing State v. Nelson, 155 N.J. 487, 526 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999)).
For the reasons expressed above, the admission of this testimony was harmless in light of the evidence supporting defendant's guilt.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION