Opinion
DOCKET NO. A-3087-12T3
05-01-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JULIO F. RIVERA, a/k/a FRANKIE BUGSY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Maven. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-05-0243. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Julio Rivera appeals his conviction for second-degree eluding a police officer and creating a risk of injury, N.J.S.A. 2C:29-2(b), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6), as well as the resulting concurrent sentences of incarceration for seven years on each count. The aggravated-assault sentence was subject to eighty-five percent parole ineligibility pursuant the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
I.
We discern the following facts and procedural history from the record on appeal, including the transcript of Rivera's trial.
Rivera and co-defendant Elvin Caballero were indicted in May 2010. Rivera was charged with the two offenses of which he was convicted. Caballero was charged with receiving stolen property, N.J.S.A. 2C:20-7(a), and resisting arrest, N.J.S.A. 2C:29-2(a)(2), -2(a)(3)(a). Caballero pled guilty; and Rivera was tried separately over five days in late September and early October 2012.
Bridgewater Police Officer Adam Augliera testified that he was patrolling near the Promenade Shopping Center in Bridgewater on March 21, 2010. At approximately 3:54 p.m., he heard a dispatch concerning a stolen, white pick-up truck in the Promenade's parking area. When he arrived at the parking area, Augliera "spotted" a white truck parked "by itself with no cars around it."
Augliera drove toward the truck and, as he got closer, he observed a man get out. The man "looked right" at him, turned away, turned back and looked at him again. The man then ran away. Augliera stated that the man was "approximately five nine, two hundred forty pounds . . . in his late twenties, early thirties, not clean shaven [and appeared] to be Hispanic." He subsequently identified Caballero as the man he saw get out of the truck and run away.
Augliera lost sight of Caballero among the cars in the parking lot, but reported the sighting and description over his police radio. While he was looking for Caballero, Augliera heard another police officer report that he "had been flagged down by someone who provided a description of a vehicle that the guy [he had been] chasing jumped into." The vehicle was described as a white Dodge sedan.
Officer Frederick Brittain also went to the Promenade Shopping Center after hearing the call about the stolen truck. Over the objection of defense counsel, Brittain testified that an unidentified woman in the parking lot approached him while he was looking for Augliera. The woman told him that "a Hispanic male exited the truck and got into a white Dodge," which was subsequently identified as a Dodge Avenger. She provided him with the car's license plate number. Brittain broadcast the information over his police radio.
Brittain did not know the woman, did not ask for her name or contact information, and did not give her a business card so she could contact him. Brittain explained "it was more important to try to catch the suspect."
After hearing Brittain's broadcast, Lieutenant Joseph Gorski drove to the Promenade Shopping Center and began looking for the Dodge sedan. He observed a white Dodge Avenger in the parking lot, and began following it with his overhead lights activated. The car failed to stop. Although Gorski initially observed only one person in the car, he subsequently noticed someone in the Avenger's front passenger seat.
After the Avenger accelerated away from him, Gorski allowed Brittain to assume the lead, with another patrol car behind him. When the Avenger and pursuing police cars left the parking lot and entered an intersection, the chase became dangerous. The Avenger caused an uninvolved car to skid. Gorski called off the pursuit, explaining that pursuits were called off "[w]hen the risk to other people or police officers outweighs the necessity to continue the pursuit."
Shortly thereafter, another police car stopped the Avenger. Gorski drove to the location of the stop, where the Avenger "had skidded into the curb." He was informed by several other officers and firefighters that the occupants had run down the street into residential backyards. Gorski instructed several officers "to establish a perimeter around the area to contain the [suspects]." However, they were not located. Gorski terminated the operation at approximately 6:30 p.m. that day.
Later in the evening, Joan Stahl, a resident of the area where the Avenger had been stopped, called the police and reported that she had seen two men leave the area in a Lexus. Gorski returned to the scene, and saw that another unit had located and stopped the Lexus. Gorski observed someone get out of the Lexus's right rear door. He ordered the man "to get back into the vehicle several times." Instead, the man ran down the street, ran through a residence and a closed bar, and then ran back on the street, while Gorski chased him on foot.
Gorski tried to stop the fleeing suspect by putting out his arm, but the suspect hit his arm and spun him around. Gorski was pushed into the front of a parked vehicle, falling to the ground. Gorski finally managed to grab the man as he ran through stopped traffic. The suspect insisted that he had done nothing wrong, but was evading the police because there was a warrant for his arrest. He refused Gorski's order to get on the ground, so Gorski performed a leg sweep, causing the suspect to fall down, so he could be handcuffed. Gorski identified the man as Caballero. The three other occupants of the Lexus, including Rivera, were also taken into custody.
Stahl testified that when she returned home from church that afternoon, the police had set up the perimeter in her neighborhood. They provided her with a "basic" description of the two fleeing men. Later that evening, Stahl was outside and was speaking with a neighbor when she saw a car pull up in front of a vacant lot on the street. There were two women in the front of the car. The passenger "ran out of the car" and up a neighbor's driveway. After a few minutes, Stahl saw her "run back" with two men running after her. Because she thought the men matched the description provided to her by the police, Stahl called 9-1-1. Stahl saw the two men and the passenger get into the Lexus, which then pulled away. Stahl noted the license plate and provided it to the police.
Officer Robert Stasiulaitis testified that he went to the location at which the Lexus had been stopped. He observed the rear passenger get out of the Lexus, ignore police commands to get back in the car, and run away.
While other officers, including Gorski, pursued the running suspect on foot, Stasiulaitis stayed at the scene with the three remaining occupants. He went over to the Lexus, "opened the rear door, grabbed the male [suspect] who was sitting behind the driver, grabbed his arm, got him out of the car, told him to get down on to the ground, handcuffed him[,] and put him in the rear of [a police] vehicle." Stasiulaitis testified that the man "cooperated," did not say anything, and did not fight or resist. He identified the man as Rivera. Officer Scott Slepokura also identified Rivera as one of the occupants of the Lexus when it was stopped.
Josephina Jibilian, who was eighty years old, testified that she was driving her car earlier in the day near the Promenade Shopping Center, when "a white car" hit her car from behind, after which she had to maneuver her car to avoid hitting some pedestrians. Her car slowed down when she hit a pothole, Jibilian was bounced forwards and backwards, and hit her head and back on the car seat. She immediately felt a "bad . . . pain in [her] head and in [her] neck," and was "quite shaken."
Caballero testified pursuant to a plea agreement under which the State would recommend a sentence of four years, concurrent with a federal sentence, if he testified against Rivera. The prosecutor first questioned Caballero about his extensive criminal history and the terms of his plea agreement.
Caballero testified that he had known Rivera since 2007. On the day of the incident, Caballero picked Rivera up in New York in a white Dodge Avenger and drove him to a location in New Jersey at which Caballero had hidden a stolen truck. Caballero got into the truck, and drove toward Bridgewater, while Rivera followed in the Avenger. They were going to Bridgewater "to pick something up."
As they approached Bridgewater, Rivera called Caballero on his cell phone and told him that someone might be following them. Caballero began to suspect an "older Mexican man" using a cell phone in the car behind him, and made a rapid turn into the Promenade Shopping Center parking lot. He got out of the truck and started wiping his fingerprints from the stolen truck. At that point, a patrol car came up behind him. He testified that "[s]omething just told [him] to run." He avoided the police car, which had turned on its overhead lights. He then got into the Avenger and Rivera took off. Caballero tried to hide in the passenger seat and he "tucked down as low as possible so nobody could see [him in] the white [Avenger]."
Although Rivera lost the police momentarily, police cars caught up with the Avenger again. Caballero testified that he briefly "popped" his head up and saw six police cars. He could not recall whether he heard the sirens. Caballero told Rivera to pull over, but he just kept going.
According to Caballero, they hit a vehicle in front of them on its rear side. It "spun off out of control." He directed Rivera to pull over, after the police stopped the pursuit. Caballero estimated that at some points Rivera had been driving the Avenger at eighty miles per hour or more.
After they were pulled over, Caballero and Rivera got out, jumped over two fences, and hid under a recreational vehicle. He and Rivera ran inside a "shack" in the same yard, closed the door, and hid underneath some tables in the back. As they were going into the shack, they saw police officers with search dogs.
Caballero telephoned his wife and gave her their location. When his wife arrived in a Lexus, he and Rivera had been in the shack for two or three hours. As they ran to the Lexus, Caballero observed two women talking in the area. They drove away in the Lexus.
About forty-five minutes later, several police cars stopped the Lexus. Caballero opened the door, got out, and started running. After ignoring orders to stop, he was eventually tackled, handcuffed, and put in a patrol car.
After cross-examining Caballero about his plea bargain, defense counsel asked Caballero about his questioning by the police following his arrest. Caballero responded that he refused to be interviewed. At that point, the prosecutor requested a sidebar conference. The prosecutor objected to defense counsel's attempt to elicit Caballero's exact statement to the police, which was "[g]o fuck yourself, faggot."
The prosecutor argued that the questioning was inappropriate cross-examination because Caballero's response to the police was not inconsistent with his testimony, and also that Caballero had exercised his Fifth Amendment right to remain silent. Defense counsel wanted to introduce the statement to show the contrast between Caballero's initial "belligeren[ce] to the police" and his "singing like a canary" at trial. The judge held that defense counsel could bring out the fact that Caballero did not make any statement implicating Rivera, but that Caballero's exercise of his Fifth Amendment rights did not permit the introduction of his exact words.
After the State rested, defense counsel moved to dismiss the charges against Rivera, arguing that "nobody can identify" him. The judge denied that motion, finding that there was testimony that a man matching Rivera's description had driven the Avenger, was fleeing with Caballero, and was an occupant of the Lexus. Although Caballero was the only witness who testified Rivera drove the Avenger, Gorski and Brittain testified that they observed two men in the car.
Rivera called no witnesses. However, he was permitted to display his forearms, which were tattooed. Defense counsel subsequently argued to the jury that no witness, other than Officer Brian Schubert, one of the arresting officers, described Rivera as having tattoos. He particularly pointed to David Pietrowicz, a Bridgewater firefighter, who testified that he could see the stubble on Rivera's face, but had made no mention of his arms being covered in tattoos.
After approximately an hour and forty-five minutes of deliberations, the jury found Rivera guilty. Rivera subsequently moved for a new trial based on trial errors. He argued that the judge erred in allowing Brittain to testify to the statements made by the unidentified woman in the Promenade parking lot concerning the description and license plate of the Avenger and in preventing his attorney from cross-examining Caballero concerning his exact response to the police when they sought to question him. The trial judge denied the motion.
Sentencing took place on January 4, 2013. The judge first disposed of the two disorderly persons offenses: criminal trespass, N.J.S.A. 2C:18-3(a), with respect to Rivera's entry into the garage, or "shack," where he and Caballero hid between the time the Avenger was stopped and the Lexus arrived; and criminal mischief, N.J.S.A. 2C:17-3(a)(1), with respect to damage to the garage door. She found Rivera guilty of criminal trespass, but not guilty of criminal mischief.
The State argued for a nine-year sentence subject to NERA. Defense counsel argued for five-year sentences, concurrent, on both charges. Rivera addressed the judge, expressed his sympathy for the victims, and recounted his intent to become a more productive member of society.
The judge noted that Rivera had five children, none of whom were dependent on him, and that he had received his GED while he was incarcerated in federal prison. He had also received substance abuse treatment for marijuana use. She found mitigating factor six, N.J.S.A. 2C:44-1(b)(6), that Rivera would pay restitution to Jibilian for damages resulting from the accident and to the owners of the garage. The judge found no other mitigating factors.
The judge found aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant would commit another offense, and aggravating factor six, N.J.S.A. 2C:44-1(a)(6), but gave it lesser weight, because Rivera did not have an extensive history of prior convictions. She also found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need to deter. The judge reiterated the potential for great harm to others in eluding a police officer, and imposed a seven-year prison term, subject to NERA, on the aggravated assault charge. She imposed a flat seven-year sentence on the eluding charge, and made the two sentences concurrent. This appeal followed.
II.
Rivera raises the following issues on appeal:
POINT I: THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY THE ADMISSION OF PREJUDICIAL HEARSAY STATEMENTS TO THE POLICE DURING A CRIMINAL INVESTIGATION BY AN UNKNOWN PERSON WHO DID NOT TESTIFY AT TRIAL.
POINT II: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS RULINGS PRECLUDING THE DEFENDANT FROM PRESENTING A COMPLETE DEFENSE.
A. THE DEFENDANT WAS IMPROPERLY BARRED FROM IMPEACHING THE CREDIBILITY OF THE STATE'S KEY WITNESS BY THE ADMISSION OF HIS PRIOR INCONSISTENT STATEMENT.
B. THE TRIAL COURT ERRONEOUSLY REFUSED TO INSTRUCT THE JURY ON A PERMISSIBLE INFERENCE AUTHORIZED BY THE LAW THAT COULD HAVE RAISED A REASONABLE DOUBT ABOUT THE IDENTITY OF THE DRIVER OF THE ELUDING VEHICLE.
POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY
PROSECUTORIAL MISCONDUCT DURING SUMMATION. (Not Raised Below)
POINT IV: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION, WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL INSTRUCTION DIRECTING JURORS TO FIND THAT THE DEFENDANT LEFT THE SCENE OF THE CRIME. (Not Raised Below)
POINT V: THE SENTENCE IS EXCESSIVE
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS
B. THE TRIAL COURT UNCONSTITUTIONALLY MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE
A.
We begin our analysis with the issue concerning the statement by the unknown woman about which Brittain testified.
Our standard of review of a trial judge's evidentiary rulings is abuse of discretion. "Trial judges are entrusted with broad discretion in making evidence rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (citation and internal quotation marks omitted). Our review of related legal issues is plenary. State v. Handy, 206 N.J. 39, 45 (2011).
Brittain's testimony concerning the statement by the unknown woman must be reviewed in context. The person the unknown woman saw get out of the truck and into the white Dodge Avenger was Caballero, and not Rivera. Rivera was charged with and convicted of offenses that took place after the woman's statement to Brittain. Brittain's testimony about the woman's report did not place Rivera in the car, nor did it specify whether Caballero was the Avenger's driver or a passenger.
Brittain testified that, while he was looking for Augliera, he was "approached by a woman . . . [w]ho told [him] that a Hispanic male exited the truck and got into a white [Avenger]" and that the Avenger then drove away. When asked when that had happened, the woman "said it had just happened." She subsequently gave Brittain the car's license plate number. As previously noted, Brittain took no contact information and, as a result, the woman was not available to testify.
N.J.R.E. 803(c)(1) allows introduction of an out-of-court statement, without regard to the declarant's availability, if it constitutes "[a] statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate." In State ex rel. J.A., 195 N.J. 324, 336-37 (2008), our Supreme Court had the occasion to interpret the phrase "immediately after" in the context of a case in which there was an interval of approximately ten minutes between the event observed and the making of the statement at issue.
Because there was no testimony that the declarant was excited, the statement would not have been admissible under N.J.R.E. 803(c)(2).
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The Court reviewed the Federal Rules of Evidence, as well as reported cases, and observed that
it is not hairsplitting to recognize a distinction between a matter of seconds, however many they may be, and an interval of as much as ten minutes separating a recollection from the observation. For purposes of a present sense impression, a declarant's statement that "the blue sports car is going through the red light" or that "the blue sports car just went through the red light" (seconds ago) is different from a declarant's statement that "the blue sports car went through the red light ten minutes ago."As a result, the Court "conclude[d] that the non-appearing witness's statements relating the details of a robbery that occurred ten minutes earlier is not the equivalent of describing the crime 'immediately after' it occurred." Id. at 340.
[Id. at 339.]
Here, the only testimony as to the time between the events observed, Caballero's exiting the truck and then entering the Avenger, and the woman's statement to Brittain was the woman's own statement that it had "just happened." The trial judge could have concluded from the prior testimony that events were taking place quickly in the parking lot and that the declarant's assertion as to the timing was correct. Consequently, we see no abuse of discretion in the judge's having allowed the testimony under N.J.R.E. 803(c)(1).
We now turn to the related constitutional issue. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. See Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069, 13 L. Ed. 2d 923, 927-28 (1965) (applying the right to the states through the Fourteenth Amendment).
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Supreme Court explained that the Confrontation Clause applied to "testimonial statements" by absent witnesses. The Court held that "[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. Consequently, if the woman's statement was "testimonial," Brittain's testimony would violate Crawford because the woman was not and never had been available for cross-examination by Rivera.
Crawford did not specifically define what statements would be considered "testimonial," but the Court has provided some guidelines. For example, "ex parte testimony at a preliminary hearing" and "[s]tatements taken by police officers in the course of interrogations" are testimonial. Id. at 52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193. However, statements "made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency" are not testimonial. Davis v. Washington, 54 7 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006). Statements are testimonial where the circumstances indicate there is no ongoing emergency and that "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Ibid.
We conclude that the unknown woman's statements to Brittain were not testimonial because, at the time she spoke with Brittain, the police were actively pursuing a fleeing suspect. Brittain's own testimony made it clear that he was more interested in the apprehension of the suspect than in gathering evidence for a prosecution.
In sum, we find no merit in Rivera's argument that his conviction must be reversed because the judge allowed Brittain to testify about the information received from the unidentified woman.
B.
We next turn to Rivera's argument about the judge's refusal to allow testimony concerning Caballero's response to the police when they asked him to make a statement at the time of his arrest.
A criminal defendant's due process rights include "'a meaningful opportunity to present a complete defense.'" State v. Garron, 177 N.J. 147, 168 (2003) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 645 (1986)). "Among the primary interests protected by the right of confrontation are the opportunity for defendants to face their accusers and to cross-examine the state's witnesses." State v. Budis, 125 N.J. 519, 530-31 (1991). This includes "protect[ion] against improper restrictions on questions defense counsel may ask during cross-examination." Id. at 531 (emphasis added) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S. Ct. 989, 999, 94 L. Ed. 2d 40, 54 (1987)).
Nevertheless, the right of confrontation "is not absolute," ibid., and "'may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process,' such as established rules of evidence and procedure designed to ensure the fairness and reliability of criminal trials," Garron, supra, 177 N.J. at 169. "[T]rial courts 'retain wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'" Budis, supra, 125 N.J. at 532 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986)); see also N.J.R.E. 611(a) ("The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment."); N.J.R.E. 401 (defining relevant evidence as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action"). But "if evidence is relevant and necessary to a fair determination of the issues, the admission of the evidence is constitutionally compelled." Garron, supra, 177 N.J. at 171 (emphasis added). New Jersey courts have found Confrontation Clause violations where a defendant was denied a sufficient opportunity to expose a prosecution witness's motive to fabricate testimony. State v. Crudup, 176 N.J. Super. 215, 217-18 (App. Div. 1980).
We conclude that the trial judge erred in precluding defense counsel from asking Caballero whether he responded to police questioning by saying: "Go fuck yourself, faggot." The testimony was relevant to the contrast between Caballero's attitude when he was arrested and when he was testifying for the State. We find no merit in the judge's explanation that Caballero was protected by his Fifth Amendment privilege because he had not been sentenced, inasmuch as his decision to testify for the State was a waiver of that privilege.
However, we do not find the error to have been of sufficient magnitude to warrant reversal. "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 . . . ." R. 2:10-2. The harmless error standard requires that there be "some degree of possibility that [the error] led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973).
Defense counsel had and took the opportunity to examine Caballero extensively about his reasons for testifying for the State, the plea agreement, and his criminal record. In addition, the jury heard testimony concerning Caballero's attempts to avoid capture, including his altercation with Gorski. The testimony concerning Caballero's rude remark to the police officers was largely cumulative. Its absence did not lead the jury to a result it would otherwise not have reached.
C.
We next turn to Rivera's argument concerning impropriety during the prosecutor's summation. Specifically, Rivera objects for the first time to the prosecutor's argument to the jury that they "can't just discount [Caballero's] testimony because of who he is and what his prior record is and what the plea agreement is that he entered into."
Because Rivera did not object at trial, we review his argument under the plain error rule. See State v. Jenkins, 178 N.J. 347, 360 (2004). Plain error is error that is "clearly capable of producing an unjust result," which should "in the interests of justice" be noticed even if "not brought to the attention of the trial . . . court." R. 2:10-2; see also Jenkins, supra, 178 N.J. at 360-61. "[T]he possibility of injustice [must be] '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) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation and internal quotation marks omitted). In making our determination, we consider the State's summation as a whole. State v. Ingram, 196 N.J. 23, 43 (2008) .
Caballero's testimony was the core of the State's case, and the attack on his credibility was central to the defense. Defense counsel developed testimony and argued during summation that the jury should not credit Caballero's testimony because of his prior record and because he was receiving a more lenient sentence in return for testifying against Rivera. If the jury did not credit Caballero, there was arguably insufficient evidence to support a conviction.
The prosecutor's statement that the jury "can't just discount [Caballero's] testimony" because of his convictions and the plea agreement, taken literally, was a misstatement of the law. In fact, the jury was permitted to do just that. However, had the prosecutor argued that the jury "shouldn't just discount [Caballero's] testimony," it would not have been objectionable because the jury was permitted to credit Caballero's testimony despite his record and his plea bargain. Our review of the overall summation given by the prosecutor inclines us to the view that he probably used "can't" when he really meant "shouldn't," and that there was no deliberate misstatement of the law.
In any event, Rivera's failure to object at trial deprived the judge of the opportunity to give a prompt corrective instruction. We are satisfied that the judge's general charge corrected any misimpression created by the prosecutor's use of "can't" rather than "shouldn't."
Elvin Caballero, who was indicted for crimes arising out of the same incident for which the defendant is on trial, has testified on behalf of the State. Elvin Caballero, who was indicted for these crimes arising out of the same incident, has pleaded guilty to some of these charges . . . . Evidence of Elvin Caballero's plea of guilty may be used only in determining the credibility or believability of the witness's testimony.The judge had earlier instructed the jury to apply only the law as she gave it to them, and she instructed them to use Caballero's past convictions and plea agreements as tools in weighing his credibility. We presume that "the jury adhered to the court's instruction." State v. Feaster, 156 N.J. 1, 65 (1998).
A jury has the right to consider whether a person who has admitted that he has failed to comply with society's rules would be more likely to ignore the oath requiring truthfulness on the witness stand than a person that has never been convicted or pleaded guilty to a crime. You may consider such evidence along with all the other factors I have mentioned previously in determining the credibility of a witness.
We find no basis to conclude that the prosecutor's inaccurate assertion concerning the law led the jury to a result it would otherwise not have reached, especially in light of the judge's overall charge. The prosecutor's conduct was not "so egregious that it deprived [Rivera] of a fair trial." State v. McGuire, 419 N.J. Super. 88, 139 (App. Div.) (quoting Ramseur,
supra, 106 N.J. 322) (internal quotation marks omitted)), certif. denied, 208 N.J. 335 (2001).
D.
We turn briefly to Rivera's arguments concerning the judge's charge. He contends that the judge erred (1) in refusing to charge the jury concerning the common law presumption that the registered owner of a vehicle was the one driving it, Kauffman v. Gullace, 252 N.J. Super. 467, 473 (App. Div. 1991); and (2) in charging the jury, in Rivera's words, that he "left the scene of the crime."
Having reviewed those arguments in light of the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2).
E.
Finally, we address Rivera's contentions concerning the sentence. He alleges that the judge improperly balanced the aggravating and mitigating factors and that she engaged in impermissible fact finding to enhance the length of the sentence.
"[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364-65.
"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)). Having reviewed the record in light of the law governing the imposition of sentence, we find no error with respect to the articulation and weighing of the aggravating and mitigating factors, all of which are fully supported by the record. Rivera had a prior record, albeit not one as extensive as Caballero. Although he had children, there was no support in the record that he played a significant role in supporting them.
With respect to judicial fact finding, Rivera's reliance on Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314, 321 (2013) is misplaced. In Alleyne, the Court recognized and differentiated the traditional role of a sentencing judge in applying sentencing factors.
Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U.S. 817, ___, 130 S. Ct. 2683, 2692, 177 L. Ed. 2d 271 (2010) ("[w]ithin established limits[,] . . . the exercise of [sentencing] discretion does not contravene the Sixth Amendment even if it is informed by judge-found facts" (emphasis deleted and internal quotation marks omitted)); Apprendi[v. New Jersey], 530 U.S. [466,] 481, 120 S. Ct. 2348, [2358,] 147 L. Ed. 2d 435[, 449 (2000)] ("[N]othing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute").Our Supreme Court struck presumptive sentencing specifically to avoid the situation in which judicial fact finding is used to enhance a sentence. State v. Natale, 184 N.J. 458, 488 (2005).
[Id. at ___, 133 S. Ct. at 2163, 186 L. Ed. 2d at 330 (first, second, third, and eighth alterations in original).]
Having reviewed the sentence and the judge's reasons for imposing it, we find no error. She imposed a sentence of two years less than that sought by the State, after carefully considering the aggravating and mitigating factors. In our opinion, the judge did not engage in fact finding of the type prohibited by Alleyne.
III.
In summary, we affirm Rivera's conviction on both counts. We also affirm the sentence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION