Opinion
DOCKET NO. A-4146-10T2
08-16-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE M. VEGA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-04-0539.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant appeals from his convictions for first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(a) (count four); and, fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39-3(f) (count five); and his sentence. We affirm.
Defendant was acquitted on the first count of the indictment, which charged him with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) or (2).
The offenses arise from events that occurred in the early morning hours of February 22, 2009, when a minivan pulled up beside a Jaguar owned by George Beltran on the New Jersey Turnpike and one of the occupants fired several gunshots into the Jaguar, striking one of the occupants, Raymond Dorsey.
Jose Gutierrez pled guilty pursuant to a plea agreement to one count of conspiracy to commit robbery and testified for the State. He stated that on the night of the shooting, he went to the All Star Nightclub (the Club) in Elizabeth with defendant and "Jay" (Jeremiah Mauricio), in defendant's blue Acura, arriving after 1:00 a.m. Upon arrival, their identifications were scanned and a record was kept of who was at the Club. Jose Cardoso, the owner, testified that defendant and Gutierrez were both admitted to the Club at around 1:25 a.m.
Gutierrez testified that he was standing outside the Club, smoking, when he heard "a group of guys talking about somebody's chain." He noticed that one of them was wearing a "nice chain" that was big enough to draw his attention and pointed it out to "Pablo." Gutierrez testified that Pablo said, "you want to go get the chain?" Gutierrez understood this to mean that Pablo was asking him about stealing the chain. Gutierrez saw the group of guys go to a Jaguar in the parking lot. He and Pablo got into a white Honda Odyssey van and Pablo drove, following the Jaguar onto the Turnpike, without paying any tolls or stopping for toll tickets. At some point, Pablo asked Gutierrez to switch positions and then Gutierrez drove, with Pablo in the passenger seat.
Gutierrez testified that after he pulled alongside the Jaguar, Pablo lowered the passenger window and fired a shot out the window. Gutierrez kept driving and saw the Jaguar exit the Turnpike. Gutierrez and Pablo then returned to Jersey City. Gutierrez later returned to the Club to pick up Mauricio, whom they had left behind. Gutierrez testified that he did not know Pablo had a gun before he shot at the Jaguar.
E-Z Pass data disclosed the license plate of two "run-through" violations that occurred approximately thirty seconds after Beltran's Jaguar entered the Turnpike at Interchange 13 and exited at Interchange 11. A video of the toll lanes at those interchanges for that night showed the white minivan following the Jaguar.
Police determined that the minivan, registered in Pennsylvania to a "Mr. Rosario," had accumulated three parking violations on Danforth Avenue in Jersey City. The van was located, parked on Danforth Avenue. Gutierrez was arrested when he got into the van on February 24, 2009.
When he was first arrested, Gutierrez identified and signed a photograph of defendant, identifying him as Pablo. In entering his guilty plea, Gutierrez also admitted that "Jose Vega was the person who [he] committed this robbery with."
At trial, Gutierrez testified that he did not recall what he said to the police immediately following his arrest, but, after he was taken to the Union County Jail, he "told them everything that [he] just said" in court. However, he also claimed he did not recall identifying defendant; that he did not say "Pablo" was defendant; that the photograph he identified of the person who shot out the window was not defendant; and that he "probably just lied about it." On cross-examination, Gutierrez testified that defendant did not commit the shooting.
The "nice chain" was worn that night by Beltran, who had invited his friends, Dorsey, Reginald Watson, Sherrod Nelson, and Jammel Allison, to the Club. Beltran left the Club with Dorsey, Watson, Nelson, and Allison at approximately 3:00 a.m. Beltran drove his Jaguar, which was equipped with EZ-Pass, onto the New Jersey Turnpike to go southbound. On the drive home, Beltran began to feel tired, pulled over, and Dorsey took over as driver while Beltran went to sleep.
Watson testified that after Dorsey took over driving "a van came out of nowhere" and pulled next to the driver's side of the Jaguar. According to Watson, the passenger of the minivan was "waving his hand" to the Jaguar, either to "slow down, or roll the window down." Watson then saw a "flash" coming from the passenger-side window of the minivan. Nelson, who was sitting behind the driver's seat, also saw the flash and determined it came from a handgun. Beltran woke up, heard "two knockings" on the car, and heard Dorsey shout "I think I'm shot." Dorsey took the next exit off the Turnpike and pulled into a nearby Exxon station, where he tied a scarf around his leg. Beltran drove Dorsey to a hospital and a hollow-point bullet was later removed from Dorsey's leg.
Mauricio testified that on February 21, 2009, he went to the Club with defendant, whom he identified as Pablo, and Gutierrez. Mauricio stated he did not leave the Club with them because he was waiting for a girl, who did not show up. Rafaelina Penzo and Amando Gonzalez also testified that they knew defendant to use two nicknames: Pablo and Adventura.
Penzo testified that on the night Gutierrez was arrested she was at a party with defendant and a man named "Killer Cucs," later determined to be Gutierrez. She testified that Fabian Velez, the building superintendent, came to the apartment, said something to defendant and defendant left. Although defendant told her he would "be back," he never returned and the next people to enter the apartment were the police. The police showed Penzo a photograph of defendant, whom she identified as "Pablo."
Gonzalez pled guilty to "hindering the apprehension and prosecution and conviction" of defendant pursuant to a plea agreement in which he agreed to provide truthful testimony at trial. He testified that on February 24, 2009, defendant called him and came over without a coat. Gonzalez "let him borrow a coat and borrow a hundred dollars." Defendant also had a twisted ankle, reportedly from "jumping from the fire escape." Gonzalez identified defendant for the police and signed a photograph of him. Gonzalez told the police there was a gun in the van, "in the side of the door," that was owned by defendant. Gonzalez testified that he knew the van belonged to defendant because "[he] saw him driving it" even though he did not know to whom the car was registered.
Velez was also charged with hindering defendant's apprehension and prosecution because he alerted defendant that "the police were outside, about the van." He testified that he believed the van belonged to defendant's aunt.
A nine-millimeter Glock 17 handgun, loaded with six hollow-point rounds, with one in the chamber, was among the items recovered in a search of the van. A nine-millimeter shell casing was also recovered. The van had been modified to provide a hiding place for the gun. Five bullet fragments were retrieved from the rear door on the driver's side of Beltran's Jaguar.
Gerald Burkhart testified as an expert in "firearms examination and identification." Burkhart examined the gun and bullet fragments recovered during the investigation. He testified that the shell casing recovered from the van was discharged from the Glock but that tests were inconclusive as to whether the bullet specimens were fired from the gun.
Defendant testified he drove to the Club in his blue Acura, following Gutierrez and Mauricio who drove the van. Defendant further testified he left the Club with a girl around 2:00 a.m. and then drove her home, before driving himself home and going to sleep. Defendant testified his nickname is Adventura and he has never been called Pablo. He stated the van was a shared vehicle for all of his friends, and that he did not use the van because he had his own car. Defendant further testified the gun retrieved from the van belonged to Gonzalez. He admitted that he left the apartment while the police arrested Gutierrez and eventually went to New York "because [he] was scared."
The jury acquitted defendant of the attempted murder charge (count one), but convicted him on the remaining charges. The jury was polled, and the verdict was unanimous. At sentencing, the judge merged the aggravated assault and unlawful possession of a weapon charges (counts three and four) into the armed robbery conviction (count two). He sentenced defendant to fifteen years with an 85% period of parole ineligibility on the first-degree armed robbery charge, and a concurrent one-year term for possession of hollow-point bullets (count five).
Defendant raises the following issues for our consideration in his appeal:
POINT I
IT WAS REVERSIBLE ERROR FOR THE JUDGE TO FAIL TO INSTRUCT THE JURY ON ACCOMPLICE LIABILITY, ESPECIALLY IN LIGHT OF THE JURY'S QUESTION. (NOT RAISED BELOW).
POINT II
AFTER BEING ASKED BY THE JURORS WHAT THEY SHOULD DO IF THEY COULD NOT REACH AGREEMENT ON A VERDICT, AND AFTER DECIDING TO GIVE THE STATE V. CZACHOR DEADLOCK INSTRUCTION TO THEM, THE JUDGE ERRED BADLY WHEN HE THEN APPARENTLY FORGOT TO GIVE THAT INSTRUCTION
AND SIMPLY SENT THE JURY BACK IN TO DELIBERATE. (PARTIALLY RAISED BELOW).
POINT III
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
82 N.J. 392 (1980).
After reviewing these arguments in light of the record and applicable legal principles, we conclude that none of the arguments have merit.
I.
During the charge conference defense counsel did not request an accomplice liability charge. Defendant argues, however, that the trial court committed plain error in failing to give the jury an instruction on accomplice liability sua sponte. He contends that the court was required to do so, particularly in light of a jury question regarding question 2A on the verdict sheet:
Count 2 on the verdict sheet, which related to the robbery charge, stated, "Jose M. Vega, on or about the 22nd day of February, 2009, in the course of committing a theft, did inflict bodily injury upon Raymond A. Dorsey, Jr." The jury was asked to answer "Not Guilty" or "Guilty" and, if they found defendant guilty, to proceed to Question 2A, which asked, "Was Jose M. Vega, while in the course of committing a robbery, armed with a deadly weapon?"
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[D]efinition of charge, specifically, armed. Does it need to be in defendant's hand or can you convict if the gun is in the car itself.
Because this issue was not raised below, the alleged error is reviewed for plain error. R. 2:10-2. To overturn an action under the plain error standard, the court must be convinced "that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).
If the prosecution or defense presents a theory of accomplice liability, the "court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993). In such a case, a "jury must be instructed that defendant 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" State v. Oliver, 316 N.J. Super. 592, 596 (App. Div. 1998) (quoting Bielkiewicz, supra, 267 N.J. Super. at 528), aff'd, 162 N.J. 580 (2000); see also State v. Whitaker, 200 N.J. 444, 458 (2009) (emphasis omitted) ("An accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal.").
However, in this case, neither the State nor the defense contended that defendant's liability was based on his participation as an accomplice. The State's theory was that he was the shooter. The defense, which included defendant's own testimony, was that he was not present at the shooting. There was, then, no rational basis for an accomplice liability charge. In fact, as was the case in State v. Crumb, 307 N.J. Super. 204 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998), it would have prejudiced defendant and tended to distract from his theory of defense -- that he was not there -- to charge the jury on accomplice liability. Id. at 222. Therefore, the failure to give an accomplice liability charge was not error at all and certainly not plain error capable of producing an unjust result.
II.
Defendant next argues that the trial court erred in failing to give a Czachor instruction to the jury. We disagree.
The jury began deliberations at 9:35 a.m. on August 30, 2010. At approximately 11:15 a.m., the jury sent a note that stated, "Testimony of Jose Gutierrez (getting to club) and also video of confession statements." The judge stated that the video statements would be played for the jury in the courtroom and asked the jury if it could "be a little bit more specific" about their readback request so they could give the jury exactly what it wanted. He stated the readback would not take place until 1:30 p.m. The jury sent a note shortly thereafter that clarified its readback request.
The jury returned to the courtroom at 2:05 p.m. After the readback and the video statements were played for the jury, they retired to resume deliberations at 2:25 p.m.
The jury entered the courtroom at 4:05 p.m. after sending the court a note requesting the definition of attempted murder and "attempted, purposely or knowingly." The court recharged the jury accordingly and the jury retired to continue deliberations at 4:15 p.m.
The jury sent another note at 4:32 p.m. The judge first stated that the record should reflect that he had sent a note to the jury, "asking if they wanted to continue deliberating, or whether they wanted to adjourn until tomorrow." The jury responded with a note stating they would "continue for now." The judge stated, "And with that, came another note that says: 'What happens if we are at a standstill, with no agreement?'"
It is unclear from the record whether the jury asked this question once or twice. The prosecutor stated that the court did not want to address this question "initially, at 3:51 [p.m.] . . . [t]hat the Court said that it was too early to address it." Defense counsel stated,
At first, the Court wanted to give the jury more time, as to their first note. Now, the jury says, again, what happens if we are at a standstill, with no agreement.
So, I ask the Judge to charge the jury appropriately, with the appropriate charge, and we can go from there. I think that they have already indicated to the Court, that they were trying to come to an agreement, and they couldn't agree.
The judge responded, "Right, Counsel[,]" and asked the prosecutor for a response. The prosecutor stated:
Well, if the Court is inclined, maybe we could give them a charge. . . .
But, also, I note that it is 4:40. They started this, this morning. The Court already asked them if they want to go home. I think, if they are at a standstill, then maybe the Court can tell them, to go home and come back tomorrow.
The Court stated, "Okay. I'm going to bring them in, and just send them home, and charge them in the morning . . . the charge that we give to the jurors, that appear to be at a deadlock," and stated further, "it is a charge about continuing with their deliberations."
The judge did not, however, give the jury a Czachor instruction the following morning. The record reflects that the jury continued their deliberations at 9:08 a.m. and, shortly thereafter, the jury requested further instructions regarding the verdict sheet. There was colloquy regarding the response to be given, but no further request that the court give a Czachor instruction. After the supplemental charge, the jury retired to resume deliberations at 10:40 a.m. and returned a verdict at 11:25 a.m.
The purpose for crafting the Czachor charge was to provide a supplemental instruction when the jury had reached a deadlock that would not influence jury deliberations inappropriately. State v. Figueroa, 190 N.J. 219, 221 (2007). That threshold event did not occur in this case.
When the jury presents the court with "an ambiguous question that suggested but did not announce a deadlock[,]" the trial court may "simply . . . give[] a supplemental charge to the jury directing it to continue deliberating," Id. at 239 (citing State v. Childs, 204 N.J. Super. 639, 646-48 (App. Div. 1985)), or may opt "to answer the question presented without directing the jury to continue deliberations." Ibid. (citing State v. DiFerdinando, 345 N.J. Super. 382, 392-93 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002)).
In Childs, supra, the jury told the judge that "at that time it could not reach a verdict." 204 N.J. Super. at 648. We found that this note did not require the judge "to conclude a verdict could not be reached" because the jury "certainly did not state that it would never reach a verdict" and the jury had "not deliberated extensively." Ibid. In Figueroa, supra, the jury sent a note that was even less ambiguous, stating, "we cannot unanimously agree on a verdict." 190 N.J. at 226. Thereafter, the court instructed the jury to continue deliberations. Id. at 226-27. The Court described this note as "a relatively benign communication that the jury believed it was unable to agree" and found "no error in the trial court's decision not to inquire specifically about whether further deliberations would likely result in a verdict." Id. at 239-40.
The note sent by the jury made no representation that the jury was unable to agree on a verdict. The question asked was framed as "[w]hat happens if . . . ." Moreover, the note was sent at the end of the day, after the court had inquired if the jury wanted to continue deliberations. When compared to the circumstances in Childs and Figueroa, it is clear that the jury's communication here did not require the court to treat the note as a statement that the jury was unable to reach a verdict.
Since the circumstances did not require a Czachor instruction, we consider the court's failure to give such an instruction on the following morning inconsequential. There was neither an additional request nor an objection to the court's failure to give the instruction. More important, the court did not give any supplemental instruction that could be characterized as coercive in nature. See Figueroa, supra, 190 N.J. at 240. Although it is certainly preferable for the court to deliver instructions it has indicated it will give to the jury, any error here in failing to do so was harmless.
III.
Defendant's argument that his sentence is manifestly excessive lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.
The trial court found one aggravating factor, N.J.S.A. 2C:44-1(a)(9), and one mitigating factor, N.J.S.A. 2C:44-1(b)(7). Defendant does not contend that the aggravating factor found was not supported by the record or that the court failed to find any mitigating factor supported by the record. Because the defendant was found guilty of a first-degree offense, the court was required to sentence defendant "for a specific term . . . between 10 and 20 years." N.J.S.A. 2C:43-6(a)(1). The court's sentencing decision here is therefore entitled to our deference, see State v. Blackmon, 202 N.J. 283, 297 (2010); State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008), and will not be disturbed. Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION