STATE OF NEW JERSEY v. CESAR HERRERA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5132-03T45132-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CESAR HERRERA,

Defendant-Appellant.

_______________________________

 

Submitted: September 20, 2005 - Decided:

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, 01-12-1393.

Yvonne Smith Segars, Public Defender, attorney for appellant (Shara D. Saget, Assistant Deputy Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant of first-degree kidnapping in violation of N.J.S.A. 2C:13-1b; second-degree attempted aggravated assault in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a; two third-degree crimes: terroristic threats in violation of N.J.S.A. 2C:12-3b, and possession of a weapon for unlawful purposes in violation of N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5d. The trial court had dismissed a charge of first-degree robbery at the conclusion of the State's case.

After denying defendant's motion for a new trial, the court sentenced defendant to a twenty-year prison term for the kidnapping conviction along with concurrent sentences for other crimes: a nine-year term with four years of parole ineligibility for the second-degree conviction for attempted aggravated sexual assault, a five-year term with two-and-one-half years of parole ineligibility for the third-degree terroristic threat conviction and a like term for the merged weapon crimes convictions.

Defendant raises the following issues on appeal:

POINT I THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION FOR AN ACQUITTAL AS TO COUNT ONE, KIDNAPPING, AS THE STATE'S EVIDENCE DID NOT SUPPORT THIS CONVICTION BEYOND A REASONABLE DOUBT.

POINT II HERRERA WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND AN IMPARTIAL TRIAL WHEN THE COURT DID NOT DECLARE A MISTRIAL AFTER DISCOVERING THAT A JUROR HAD CONSUMED ALCOHOL DURING HIS SERVICE.

POINT III THE SENTENCE IMPOSED ON MR. HERRERA IS MANIFESTLY EXCESSIVE AND VIOLATED HIS FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS AND A JURY TRIAL. (Not Raised Below)

A. THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

B. THE ABOVE-THE-PRESUMPTIVE SENTENCES IMPOSED DENIED HERRERA OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND RIGHT TO JURY TRIAL.

The first two issues, addressed to the convictions, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). There were ample facts in the record to support the jury's determination that a kidnapping had occurred. See State v. Masino, 94 N.J. 436, 447 (1983); State v. Sims, 65 N.J. 359, 373-74 (1974); State v. Reyes, 50 N.J. 454, 459 (1967). The trial judge dealt with the juror conduct question appropriately and did not misapply his discretion in resolving it.

The convictions are, accordingly, affirmed. A remand is required to address two sentencing features, however.

One of the sentencing problems bears upon an omission from the written judgment of conviction. The judgment does not mention the sentences for terroristic threats and the merged weapon convictions. The verbatim record discloses that the sentences we have described were imposed, but those dispositions are not memorialized in the judgment of conviction.

The other sentencing factor that requires further involvement by the trial court arises from the imposition of higher-than-presumptive sentences apparently predicated on aggravating factors other than defendant's prior criminal history. Accordingly, pursuant to the precepts of State v. Natale, 184 N.J. 458 (2005) and State v. Abdullah, 184 N.J. 497 (2005); see also State v. Franklin, 184 N.J. 516 (2005), the concurrent sentences for attempted aggravated sexual assault, terroristic threats, and the merged weapon crimes must be reconsidered. The twenty-year sentence for kidnapping, being within permissible bounds under the standards of those cases, need not be reconsidered.

The convictions are affirmed. The matter is remanded for reconsideration of the sentences for the second- and third-degree crimes and for correction of the judgment of conviction.

 

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A-5132-03T4

October 3, 2005