Opinion
DOCKET NO. A-5561-12T1
02-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ARIEL SERRANO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gioiella A. Mayer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Waugh. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-11-1901. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gioiella A. Mayer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Tried by a jury, defendant Ariel Serrano was convicted of second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b). On May 9, 2013, defendant was sentenced to ten years of imprisonment subject to five years of parole ineligibility. Appropriate fines and penalties were imposed. He appeals and we affirm.
The State dismissed the first eight counts of the indictment prior to trial.
I
Before the trial began, defense counsel advised the trial judge that his client did not wish to proceed in the clothing he was wearing, a t-shirt and jeans. Defendant had apparently been unable to reach his family the night before to obtain clothing he considered more suitable. The trial judge would not delay the start of the trial for that reason, but stated that he would have done so had defendant been dressed in jail garb.
The State's first witness at trial was Jersey City Police Detective Christopher Baker, who testified that on May 30, 2011, at approximately 3:30 a.m., he was dispatched to "a large street fight" in the area of Washington Park. Upon arrival, he observed "multiple groups fighting in the middle of the street," and updated the station so additional officers could be sent to the scene. His attention was drawn to a man, whom he later identified as defendant, pointing a two-tone handgun at a person lying on the ground. Baker drew his own weapon and ordered defendant to stop. Defendant grabbed a woman also involved in the melee, pulled her close to him, and moved back towards the entranceway to the park. Baker immediately put away his own weapon and dispatched a description of defendant. Defendant continued backing towards the park, let the woman go, and began running with the firearm still in his hand. Baker followed.
Because of the rush of others also fleeing the arrival of police, Baker was forced to stand on a wall to obtain a clear view. After seeing defendant run through the park onto a street, Baker began chasing him. Defendant threw the weapon to the side as he ran but was quickly apprehended by other officers who had gone to the location per Baker's directions. Baker said he never lost sight of defendant.
A canine unit was called to the scene, and Baker directed that officer's attention to the relevant area. The dog located a two-tone semi-automatic in a trash can.
While cross-examining Baker as to the police report he authored after the incident, defendant's attorney and the detective engaged in the following colloquy:
Q Where in that report, sir, very specific, do you say you saw a person on the ground?
A I state that he was struck with the handgun causing injury which put him on the ground.
[DEFENSE COUNSEL]: I am going to ask that be stricken.
THE COURT: May I see the report, please?
THE WITNESS: It says it in the report, top paragraph, your Honor, page two.
THE COURT: May I see Counsel at sidebar?
(Whereupon the following takes place at sidebar.)
THE COURT: I think you can see the paragraph the Officer's referring to does not indicate the attitude of the victim in this case, whether he is on the ground or isn't on the ground. He is giving an answer. I am not going to strike the answer. You can cross-examine him further on the issue. He gave an answer. You can cross him on it if you wish. If this is the paragraph, you can have him read the paragraph and let the jury decide what it said.
[DEFENSE COUNSEL]: I will read it to him.
THE COURT: That's the one he's referring to.
[DEFENSE COUNSEL]: I will read it to him.
(Whereupon the following takes place in open court.)
THE COURT: You may proceed, sir.
Q Before I ask you a series of questions, you just told this jury that someone received injury, who received injury?
A That male left the scene. We never saw him.
Q Who received injury? Did you know anyone who received injury, yes or no?
A Yes.
After the State rested, the judge engaged in extensive voir dire with defendant regarding his decision not to testify. He also read him the actual language of the Model Jury Charge (Criminal), "Defendant's Election Not to Testify," (2009). The judge told defendant directly, in the presence of his attorney, that he must inform him as to whether he wanted the charge to be read to the jury, but that he would give him time to discuss the issue with counsel. The judge added, "let me know what your decision is."
A few days later, when the trial resumed, the judge and counsel met in chambers with regard to the final jury charges. The judge summarized the meeting on the record, stating among other things, "I will charge the [d]efendant's election at his request . . . ." The court also indicated that, at the State's request, it would give the flight charge, and would add language to the effect that the jury should only consider the instruction if it concluded that the State had met its burden beyond a reasonable doubt that defendant was the "perpetrator of the offense." No objection was raised to the proposed charge.
At the close of the charge conference, the judge said: "I understand there are no other issues for the [c]harge, is that correct?" Both attorneys assented. The judge further asked if counsel was ready to proceed to summation, and they agreed.
During his final charge, the judge read the flight instruction as he had indicated to defendant and counsel. He prefaced the instruction by saying: "Now, the following instruction applies only if you find the State has proven beyond a reasonable doubt the identity of this [d]efendant as the perpetrator of this offense. If you find the State has not proven that this [d]efendant committed this offense, you are to disregard this instruction."
At the conclusion of the final instruction, the judge called counsel to sidebar and asked if there were objections. Defendant's attorney responded, "It is done now. Only objection would have been my client did not ask for that charge [concerning his decision not to testify] but you gave it." The judge disagreed. Without further discussion, the process moved on to the selection of alternate jurors.
Defendant was twenty-five when sentenced, had been adjudicated delinquent on several occasions and convicted of two indictable drug offenses, as well as violations of probation. After this offense, he was arrested five additional times: three occasions for municipal court matters and two for unrelated indictable charges which were still pending the day of the sentence. The court, after finding aggravating factors three, N.J.S.A. 2C:44-1(a)(3); six, N.J.S.A. 2C:44-1(a)(6); and nine, N.J.S.A. 2C:44-1(a)(9), sentenced defendant to ten years with the five years of mandatory parole ineligibility required by N.J.S.A. 2C:39-7(b).
II
On appeal, defendant raises the following points for our consideration:
POINT I
THE INTRODUCTION OF EVIDENCE THAT [DEFENDANT] PURPORTEDLY HIT THE OTHER MALE WITH A HANDGUN AND ABSENCE OF AN N.J.R.E. 404(b) LIMITING INSTRUCTION REGARDING THIS EVIDENCE WARRANTS REVERSAL. (Raised Below, in Part).
A. [Defendant]'s Trial Was Tainted With Irrelevant and Highly Prejudicial Testimony that He Allegedly Hit the Other Individual With a Handgun.
B. Even if Evidence that [Defendant] Allegedly Hit the Other Male With the Handgun Were Admissible, the Trial Court Erred in Failing to Issue an N.J.R.E. 404(b) Limiting Instruction.
POINT II
THE ISSUANCE OF AN INSTRUCTION REGARDING [DEFENDANT]'S FAILURE TO TESTIFY ABSENT HIS CONSENT WARRANTS REVERSAL.
POINT III
[DEFENDANT] WAS DENIED A FAIR TRIAL BECAUSE HE WAS FORCED TO PROCEED WITH JURY SELECTION IN CLOTHING WHICH HAD THE POTENTIAL TO DIMINISH HIS STANDING BEFORE THE JURY.
POINT IV
THE TRIAL COURT ERRED IN FAILING TO TAILOR THE FLIGHT CHARGE TO [DEFENDANT]'S DEFENSE. (Not Raised Below).
POINT V
IN THE ALTERNATIVE, THE CASE SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCE IMPOSED BY THE COURT BELOW IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
A. The Sentencing Judge Neglected to Consider Mitigating Factor Eleven.
B. The Sentence Imposed Was Not Offense-Oriented, as Required Under State v. Roth and State v. Hodge.
A.
On direct examination, no objection was made to Baker's testimony that when he observed defendant holding the two-tone semi-automatic, he was standing over another man lying on the ground. An objection was not made until cross-examination when Baker repeated the language in his police report to the effect that defendant struck another with the handgun, "put[ting] him on the ground." From the context, it appears the objection and request to strike were made because counsel did not believe Baker's answer was responsive. No objection was actually made based on N.J.R.E. 404(b). We therefore review defendant's first point employing the plain error standard. See R. 2:10-2. Defendant is entitled to relief only if the alleged error had the clear capacity to produce an unjust result.
Under N.J.R.E. 404(b), "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." Such evidence, however, may be admitted for an alternate purpose, such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity[,] or absence of mistake or accident." Ibid. The concern in admitting evidence of other crimes is that "the jury may convict the defendant because he is a bad person in general." State v. Cofield, 127 N.J. 328, 336 (1992). Thus N.J.R.E. 404(b) "seeks to strike a balance between the prejudice to a defendant that is inherent in other-crimes evidence and the recognition that the evidence may be highly relevant to prove a defendant's guilt of the crime charged." State v. Barden, 195 N.J. 375, 388 (2008).
The threshold determination under N.J.R.E. 404(b), however, "is whether the evidence relates 'to other crimes,' and thus is subject to continued analysis under [the rule], or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy." State v. Rose, 206 N.J. 141, 179 (2011). An uncharged offense is intrinsic evidence of a charged crime if it: (1) "directly proves the charged offense," or (2) was "performed contemporaneously with" and "facilitate[d] the commission of the charged crime." Id. at 180 (quoting United States v. Green, 617 F.3d 233, 248-49 (3d Cir.), cert. denied, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)). In addition, "other crimes evidence may be admissible if offered for any non-propensity purpose, including the need to provide necessary background information about the relationships among the players" involved. Id. at 180-81 (internal quotation marks and citation omitted).
In this case, Baker's testimony falls into both the first and second categories of intrinsic evidence, as it constitutes both evidence directly proving the charge and was performed contemporaneously with the commission of the charged crime. The testimony was proffered to communicate to the jury that the detective observed defendant wielding the handgun, and to explain the reason that the detective would have focused on one particular individual in the midst of a crowd to the exclusion of others.
Under Rose, this evidence of an uncharged offense must also be relevant to be admissible. Rose, supra, 206 N.J. at 179. The detective's observations are relevant since they explain the reason defendant was pursued and ultimately arrested. As an aside, the testimony was properly admitted as the probative value in allowing the jury to hear the full sequence of events outweighed any potential prejudicial effect. N.J.R.E. 403.
Since the evidence was intrinsic to the charged offense as defined in Rose, it is exempt from the strictures of N.J.R.E. 404(b). The trial court was neither obligated to conduct an out-of-the-jury's-presence hearing as to admissibility pursuant to the rule, nor provide a limiting instruction.
B.
A defendant is entitled to the election not to testify jury instruction when requested, as it reminds the jury that the burden of proof rests solely with the State. See State v. Bogus, 223 N.J. Super. 409, 422 (App. Div.), certif. denied, 111 N.J. 567 (1988). The omission of the instruction when it is requested "requires a harmless-error analysis." State v. Camacho, 218 N.J. 533, 537 (2014).
Although it is preferable that a defendant decide whether the jury charge should be given, a defendant does not have a "constitutional right to resist the instruction." State v. McNeil, 164 N.J. Super. 27, 31 (App. Div. 1978), certif. denied, 79 N.J. 497 (1979). The United States Supreme Court has held that the instruction, given over a defendant's objection, does not violate his or her Fifth Amendment rights. Lakeside v. Oregon, 435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978). In reaching this conclusion, the Court noted the instruction's "very purpose is to remove from the jury's deliberations any influence of unspoken adverse inferences. It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect." Id. at 339, 98 S. Ct. at 1095, 55 L. Ed. 2d at 325.
We have held that even where co-defendants differ, it is not error to give the instruction, as the co-defendant who does not want it to be administered has no constitutional right to resist. McNeil, supra, 164 N.J. Super. at 31. We have also found that where a defendant failed to appear for trial, the instruction given in the absence of any election by the defendant was not prejudicial. See State v. Lynch, 177 N.J. Super. 107, 115 (App. Div.), certif. denied, 87 N.J. 347 (1981).
In this case, the judge asked defendant directly to advise him as to his decision with regard to the instruction. Some days later, when the charge conference resumed, the judge clearly stated in the presence of defendant and his attorney that he was going to give the charge. He did so on at least two occasions, and defendant and his attorney remained silent. Even though defendant did not explicitly respond to the judge's repeated statements regarding the instruction, we interpret his silence as the equivalent of assent.
We agree that under "ordinary circumstances the charge should not be given except upon request by [the] defendant." Ibid. But if we assume for the sake of argument that the trial judge erred by failing to elicit an explicit assent on the record, not just assent by silence, the question remains whether that error led to a result the jury might not have otherwise reached. State v. O'Brien, 200 N.J. 520, 542 (2009).
Defendant offers only a conclusory statement that the error was capable of producing an unjust result, without further explanation. He does not identify any rationale supporting the argument. The State's evidence was overwhelming. Defendant was witnessed in the possession of the weapon by an officer, seen discarding the item, which was subsequently located, and was arrested within a minute or two of the original sighting. In light of these observations, the trial court's failure to obtain explicit consent from defendant about the instruction did not lead the jury to a result it otherwise might not have reached. Even if error, the error was harmless.
C.
Defendant asserts that he was denied a fair trial because he appeared in civilian attire that he did not wish to wear on the first day of jury selection. A trial judge "is responsible for assuring that the presumption of innocence is not lost at any stage in the proceedings because of extraneous, impermissible factors such as [the] defendant's physical appearance." State v. Maisonet, 166 N.J. 9, 22 (2001). We have been "especially vigilant in protecting a defendant's right not to be compelled to appear at trial in prison attire" in order to protect the presumption of innocence. Id. at 18. While a defendant cannot be required to proceed to trial in prison clothing, he does not "have the right to dictate to the court which civilian clothing he will wear." State v. Herrera, 385 N.J. Super. 486, 499 (App. Div. 2006) (internal quotations and citation omitted).
In Maisonet, our Supreme Court reversed a conviction because the "defendant was denied basic necessities while in custody" and as a result, the "defendant appeared dirty and unkempt during most of the trial." Maisonet, supra, 166 N.J. at 19. The Court determined that defendant's appearance "undoubtedly had the potential to diminish his credibility before the jury." Ibid. The Court also noted:
[W]e emphasize that our holding is based on a number of factors not likely to be present in future cases: defendant was deprived of all necessary amenities with no justification by the State; his physical condition was palpable to any reasonable observer; he testified before the jury and thus put his truthfulness directly in issue; and Marquez, the co-defendant, who was apparently neatly groomed because he was free on bail, testified against defendant in what essentially became a battle of credibility.
[Id. at 22.]
In Herrera, the defendant was offered civilian clothing to wear during trial but refused, claiming the clothes came from the "garbage trash." Herrera, supra, 385 N.J. Super. at 494. We held that a "defendant has a right not to appear in civilian clothing that may appear distasteful or disrespectful to a reasonably objective juror," but "a defendant cannot be allowed to reject any clothing that does not fit his taste and style." Id. at 498. Accordingly, the court remanded the case "to develop the record with respect to a description of the clothing [the] defendant was offered in place of his jail clothing." Id. at 499.
This defendant was dressed in his own pair of jeans and t-shirt that he had worn the previous day. Aside from defense counsel's opinion that defendant's attire was "not very clean," there is no indication that the appearance of defendant's clothing was distasteful or prejudicial. Thus, defendant was not deprived of a fair trial simply because he was compelled to appear in civilian attire with which he was not comfortable on the first day of a four-day trial.
D.
Defendant asserts for the first time on appeal that the judge should have tailored the flight instruction to his account of the facts. In other words, that the judge erred by not including his version of the facts —— that he was simply walking down the street at the time he was arrested —— in the jury instruction. The argument is entirely lacking in merit, and we do not see how the charge, if followed by the jury, would have in any way prejudiced defendant. The judge required the jury to first find that the State had met its burden of proof beyond a reasonable doubt as to the identification of defendant as the perpetrator before considering the flight instruction. We assume jurors comply with instructions. See State v. Burns, 192 N.J. 312, 334-35 (2007).
E.
Our review of a trial judge's sentencing decision is "relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). A criminal sentence must be affirmed unless: (1) the sentencing guidelines were violated; (2) the aggravating or mitigating factors were not based on "competent credible evidence in the record;" or (3) the application of the guidelines made the sentence "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984). Thus "an appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. Cassady, 198 N.J. 165, 180 (2009) (internal quotation and citation omitted).
Additionally, the trial court need not "explicitly reject each and every mitigating factor argued by a defendant." State v. Bieniek, 200 N.J. 601, 609 (2010). However, "where mitigating factors are amply based in the record before the sentencing judge, they must be found." State v. Dalziel, 182 N.J. 494, 504 (2005).
Now on appeal, defendant argues that because of his minor child and ailing mother, the judge should have found mitigating factor eleven, that defendant's incarceration would cause undue hardship. Obviously, the statute requires a minimum mandatory term of parole ineligibility of five years and a sentence within the five-to-ten-year range. Nothing in the record distinguishes this defendant's situation from that of any other person who is incarcerated and leaves behind children and ailing parents. The record did not support mitigating factor eleven.
Defendant's criminal history at his young age warranted the judge's finding of aggravating factors three, six, and nine. The aggravating factors were supported by competent, credible evidence and were given substantial weight. Included in the judge's consideration of defendant's risk of re-offense was the fact he was arrested five times after the incident that led to this indictment. See State v. Gallagher, 286 N.J. Super. 1, 21 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996). In light of the weight the judge accorded the aggravating factors, the court's imposition of the maximum sentence for the offense was not an abuse of discretion. The sentence does not shock our conscience.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION