Opinion
DOCKET NO. A-5733-12T2
11-18-2015
STATE OF NEW JERSEY, Plaintiff-Defendant, v. RICHARD A. MUNOZ, Defendant-Appellant.
Jacqueline Turner, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Turner, of counsel and on the brief). Georgina Giordano Pallitto, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Pallitto, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-02-0230. Jacqueline Turner, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Turner, of counsel and on the brief). Georgina Giordano Pallitto, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Pallitto, on the brief). PER CURIAM
Defendant Richard A. Munoz and Hector Lozado were indicted by a Hudson County Grand Jury and charged with murder, N.J.S.A. 2C:11-3a(1) or (2), felony murder, N.J.S.A. 2C:11-3a(3), first degree robbery, N.J.S.A. 2C:15-1, third degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d, and fourth degree unlawful possession of a weapon (knife), N.J.S.A. 2C:5d. After a four-day trial, the jury acquitted defendant of all of these charges, and found him guilty of second degree robbery as a lesser included offense of first degree armed robbery.
The court sentenced defendant to a term of eight years, subject to an eighty-five percent period of parole ineligibility and three years of parole supervision as required by the No Early Release Act, N.J.S.A. 2C:43-7.2. For the first time on appeal, defendant argues the trial judge committed reversible error by failing to instruct the jury, sua sponte, to consider the third degree offense of theft from the person, N.J.S.A. 2C:20-2(b)(2)(d), as a lesser included offense of robbery. Defendant also challenges the sentence imposed by the court as "excessive."
After reviewing the record developed at the trial and mindful of prevailing legal standards, we affirm.
The victim of this homicide was a man named Ricardo Cruz. Julio Neira was the State's first witness. He lived across the street from Cruz. Neira testified he last saw Cruz in the early morning hours of July 4, 2010. According to Neira, Cruz was "sleeping" on the front steps of his apartment building located on 44th Street in Union City. The record shows Cruz was extremely inebriated at the time he was assaulted and fatally stabbed. The medical examiner who performed the autopsy on Cruz testified his blood alcohol content was 0.244, more than three times the presumptive level of intoxication established by the Legislature to constitute operating a motor vehicle while intoxicated under N.J.S.A. 39:4-50(a).
The medical examiner also found the victim died from three stab wounds; one in the upper abdomen, one in the right thigh, and the last one on the left leg. The upper abdominal wound was seven inches deep and perforated the liver, causing massive internal bleeding. The medical examiner testified he found approximately two liters of blood inside the victim's abdomen.
The State's case consisted primarily of a videotape recording from a surveillance camera that was mounted on the apartment building where the victim resided. The videotape depicted defendant, Lozado, and a third man, known under at least three different names, interacting with the victim on at least two separate occasions and ultimately fleeing the scene. The videotape record did not capture the actual assault. Hudson County Prosecutor's Office Investigators were able to identify defendant as one of the men who interacted with the victim prior to and at the time of the assault.
Defendant gave a statement to these investigators in which he admits that Lozado and the third man "were plotting" to take advantage of the victim's inebriation to rob him. Defendant claimed, however, that he did not know the two men intended to assault Cruz. Defendant denied taking part in the assault. He also denied taking anything directly from Cruz. As the following statement illustrates, defendant told the investigators his only involvement was limited to accepting a pack of cigarettes that Lozado and the third man took from the victim.
Q. Okay. Now did you see Hector [Lozado] or [the third man] go through this gentleman's pockets or anything?
A. No, they went through his shirt pocket.
. . . .
They must have went through his shirt pocket and grabbed, the same cigarettes you gave me, Marlboro.
Q. You grabbed a pack of Marlboro?
A. Lights.
Q. Okay. And that was in the gentleman's shirt pocket?
A. Yup.
Q. Was it on his left side or his right side?
A. His left side.
Q. Left side pocket on his shirt?
A. Yes.
Q. And you saw Hector [Lozado] take that out?
A. Yes.
Q. While the gentleman was passed out or was he awake?
A. He was passed out, but when they pulled, he got up.
Q. Okay. And did [the third man] take anything from the gentleman?
A. Cell phone.
Defendant also testified at trial in his own defense. However, in contrast to the statement he gave to the law enforcement investigators, defendant denied taking anything from the victim, directly or indirectly. The following statement was part of defendant's direct testimony before the jury.
DEFENSE COUNSEL: Now, Richard, did you stab Ricardo Cruz?
A. No. No, I didn't.
DEFENSE COUNSEL: Did you punch Ricardo Cruz?
A. No, I didn't.
DEFENSE COUNSEL: Did you in any way pull Ricardo Cruz' legs?
A. No.
DEFENSE COUNSEL: Did you take anything from his pockets or his person?
A. No, I didn't.
DEFENSE COUNSEL: Did you at any point in time agree to take anything from his person?
A. No.
DEFENSE COUNSEL: In fact, did you tell Hector [Lozado] that you would not participate?
A. Yes.
DEFENSE COUNSEL: Did you tell him on more than one occasion?
A. Yes.
DEFENSE COUNSEL: Now, why did you go up the step of Ricardo Cruz' house?
A. To push him away from Hector Lozado.
DEFENSE COUNSEL: And why is that?
A. Because the guy was drunk.
DEFENSE COUNSEL: And why did you run?
A. I was shocked, nervous.
Against this record, defendant now appeals raising the following arguments.
POINT I
THE TRIAL JUDGE ERRED IN FAILING TO CHARGE THEFT AS A LESSER INCLUDED OFFENSE OF ROBBERY, AS THE EVIDENCE CLEARLY INDICATED THE STRONG POSSIBILITY THAT THE DEFENDANT,
IF GUILTY, WAS GUILTY OF THEFT AND NOT ROBBERY. (Not Raised Below)
POINT II
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
We begin our analysis by emphasizing that defendant did not request the trial judge to instruct the jury to consider the third degree offense of theft from the person, N.J.S.A. 2C:20-2(b)(2)(d), as a lesser included offense of robbery. Under these circumstances, we apply the plain error standard of review codified in Rule 2:10-2. Under this standard we will reverse the conviction only if the error is "clearly capable of producing an unjust result." Ibid. In the context of reviewing the trial court's jury instructions, our Supreme Court has held that "plain error is '[l]egal 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. Camacho, 218 N.J. 533, 554 (2014) (quoting State v. Adams, 194 N.J. 186, 207 (2008)).
The trial court is not permitted to charge the jury to consider a lesser included offense "unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). Defendant's trial testimony does not provide a rational basis for the judge to instruct the jury to consider theft from the person as a lesser included offense of robbery. State v. Maloney, 216 N.J. 81, 109-110 (2013). We can also infer that defense counsel did not ask for a lesser included offense charge because his principal concern was to provide a basis for the jury to acquit defendant of the far more serious offenses of murder and felony murder.
We acknowledge that a trial judge's primary obligation is to see that justice is done. State v. Garron, 177 N.J. 147, 180 (2003). Thus, the judge has an independent non-delegable duty to charge the jury to consider a lesser included offense, "even if at odds with the strategic considerations of counsel." Ibid. However, a trial judge is not obligated to "scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty." State v. Savage, 172 N.J. 374, 397 (2002) (internal citations and quotations omitted). Here, we are satisfied that the record clearly shows there was no rational basis for the judge to have, sua sponte, charged theft as a lesser included offense of first degree robbery.
Finally, we rejected defendant's argument attacking the sentence imposed by the court as excessive. The judge found aggravating factors N.J.S.A. 2C:44-1a(3) and (9), and did not find any mitigating factors. Although defendant did not have any prior involvement with the criminal justice system as an adult, he had two cases originating from the Family Part. Defendant was eighteen years old at the time he committed this very serious offense against a defenseless, highly intoxicated man. Although the jury acquitted defendant of any direct involvement with the brutal stabbing that cost the victim his life, he was convicted of the robbery that was the motive for this horrific and senseless crime. We see no basis to interfere with the sentence imposed by the court. State v. Fuentes, 217 N.J. 57, 73-74 (2014).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION