STATE OF NEW JERSEY v. JASON J. SANCHEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5328-03T45328-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON J. SANCHEZ,

Defendant-Appellant.

_______________________________

 

Submitted: September 27, 2005 - Decided:

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 03-03-0409.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Mary E. McAnally, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was acquitted of two counts of second-degree robbery and one count of second-degree conspiracy to commit robbery and convicted of the lesser-included offenses of two counts of third-degree theft from the person and one count of third-degree conspiracy to commit theft. Judge Garofolo merged the conspiracy into the substantive offenses and sentenced defendant to two consecutive four-year custodial terms. The remaining co-defendants had all pled guilty to robbery of one victim and received sentences of five or seven year terms, subject to the No Early Release Act (NERA).

On appeal, defendant argues:

POINT I

THE TRIAL COURT ERRED BY INSTRUCTING THE JURY REGARDING THEFT FROM THE PERSON AS A LESSER INCLUDED OFFENSE OF ROBBERY EMBODIED IN COUNTS I AND II OF THE INDICTMENT. (NOT RAISED BELOW).

POINT II

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED FROM A POLICE OFFICER CONSTITUTING INADMISSIBLE HEARSAY WHICH INCRIMINATED THE DEFENDANT. (NOT RAISED BELOW).

POINT III

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We are not persuaded by any of these arguments and affirm.

I

The charges arose from a mugging of a couple on the Atlantic City boardwalk by defendant and co-defendants. After consuming alcohol and drugs at the Pittsburgh Hotel in Atlantic City, defendant and co-defendants, Matthew Reuter, Raymond Morales, Terri Watson, and Holly Bernard, proceeded to the boardwalk. The co-defendants walked in a pack while defendant walked about fifty feet behind, attempting to reach a female friend on his cell phone.

Reuter testified that Morales suggested they rob someone. At 9:00 p.m., as the group approached the Showboat Casino, Reuter, Morales, Watson and Bernard spotted a couple, Byacheslav (Steve) and Svetlana Aranbayeu, walking towards them and selected them as their victims. Mrs. Aranbayeu was talking on a cell phone and walking slightly behind her husband.

Defendant testified that the group began to walk faster, and both Reuter and Morales urged him to hurry and join them. According to defendant, at this point, he was not aware his friends were planning to rob the couple, though he had a feeling they were "planning something," "up to no good" and "like a pack of wolves." Reuter testified as a defense witness that he robbed the victims with co-defendants but defendant was not involved in the robbery, nor was he aware of their plan.

The two female co-defendants followed behind the couple, and Reuter and Morales walked up to the husband. Reuter punched him in his left eye, causing him to fall to the ground and both men began hitting and kicking him while he was on the ground. When the wife screamed, Bernard grabbed her cell phone and struck her in the face. Both Bernard and Watson then knocked her to the ground and started hitting and kicking her. They choked her with a scarf she was wearing to quiet her screams, and when she bit their fingers, the women released her but continued to beat her while she was on the ground.

Defendant testified he then "jogged up" to the scene to ask co-defendants what they were doing. He claimed the husband then lunged forward, attempting to get up, and touched his leg. Defendant testified it "spooked him" and, on impulse, he "shook [the man] off." Reuter went through the husband's pockets, taking two dollars and a credit card. Defendant realized that people were watching, warned the group and fled, heading back to the Pittsburgh Hotel. Reuter discarded the stolen items and fled when he observed Andy Depena, a bicycle security guard for the Showboat Casino, approaching the scene. Morales also attempted to flee but was grabbed, subdued and handcuffed by Depena. The guard retrieved the stolen credit card and money, which were later identified by the victims. Bernard and Watson then "nonchalantly" walked away with the wife's cell phone.

The Showboat Casino had surveillance cameras set up allowing the staff to view the perimeter of the establishment, including the boardwalk. When a staff member observed the suspicious behavior of co-defendants, the security command began recording the group on the boardwalk and captured the incident on videotape. The tape was later turned over to the police.

Morales was arrested and transported to headquarters. When Bernard arrived later that night to post bail for Morales, she was identified by the detectives as one of the assailants on the videotape and was arrested. The officers learned from the suspects that Reuter, Watson and defendant could be found in Room 10 of the Pittsburgh Hotel, where they were apprehended.

After signing a Miranda form, defendant made a taped statement, concluding:

I just want to say I didn't intend on f-kn mall or bash or f-kn or whatever the f- they did to those people. Aaa f- it. I'm just as guilty cause I tagged along and I didn't do nothing. Well, I am not going to say I didn't do nothing. I very much a lot to do with what the f- happened. And it was upsetting and it was crazy. I felt bad for the people. The dude was screaming and bloody and shit. The wom[a]n was hysterical. I couldn't stop four people. The best thing I could do was get the hell out of there. And . . . I didn't intend for that to happen. I didn't intend for shit to happen. Truthfully I was waiting the hell to go the f- home but don't know to say Yo I'm leaving. But obviously, I just took to[o] damn long to say I'm leaving.

II

Upon learning of the jury instructions, Rule 1:7-2 requires counsel to raise any objections prior to the charge being given. If counsel does not object, the decision to instruct the jury in a certain manner is evaluated by the plain error standard under Rule 2:10-2. The defendant has the burden of proving that plain error has occurred. Plain error is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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. Jordan, 147 N.J. 409, 422 (1997) (quoting 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)).

Defense counsel acquiesced in the trial judge's decision to instruct the jury on the lesser-included offense of theft from the person. Defendant now claims the trial record did not support such a charge because the jury could only find him guilty of robbery as having been an active planner and participant from its inception or as having joined in the assault after it began and prior to the completion of the robbery. Or, defendant claims, the jury could have found him not guilty based on his lack of participation in any assault with any intent to assist the other four co-defendants. Defendant now maintains the evidence could not support a finding of theft from the victim and he was entitled to an "all or nothing" verdict.

We disagree. We discern no error, let alone plain error, in the trial court's sua sponte instruction on the lesser-included offense of theft from the person. A person is guilty of robbery if, in the course of committing a theft, he:

1) Inflicts bodily injury or uses force upon another; or

2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

3) Commits or threatens immediately to commit any crime of the first or second degree.

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

[N.J.S.A. 2C:15-1(a)].

Under N.J.S.A. 2C:20-3(a), a person is guilty of third-degree theft "if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof."

N.J.S.A. 2C:1-8(d) allows the conviction of an "included" offense when:

1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or

3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

As the Supreme Court recently held in State v. Muhammad, 182 N.J. 551, 577 (2005), when neither party objects to the court's charge of a lesser-included offense, the conviction of the lesser charge is upheld "so long as the evidence in the record provides rational support for the conviction." The evidence in this record clearly provides rational support for the theft convictions. The jury could find that defendant did not use force and only involuntarily kicked the husband. It could further find he did not agree for the others to use force because he stayed behind and joined co-defendants only after the initial physical attack on the victims. Additionally, the jury could find defendant criminally responsible for the lesser-included offense of theft of the victims' money, credit card and cell phone, based on his joining the group prior to the items being stolen.

Even if the testimony of Detective Kane, challenged for the first time on appeal, was inadmissible hearsay under State v. Bankston, 63 N.J. 263 (1973), it was not clearly capable of producing an unjust result, warranting reversal of defendant's conviction. R. 2:10-2. The testimony at issue is as follows:

Q. Okay. So, based upon that pre-interview with [Bernard], based upon what the other detectives learned from her and Mr. Morales, did there come a point in time when you and Detective Rouch and Detective Smith determined to do something?

A. Yes, we did. We obtained information that the other individuals we were looking for were at the Pittsburgh Hotel . . . and that they could be found in room l0.

. . . .

A. And at that point, I believe we knew everybody's first name, so we knew we were looking for a Terry, Matt and Jason.

Defendant's trial strategy was based on a claim of non-involvement or withdrawal. He never contested the fact that he was with co-defendants at the scene. In his statement and trial testimony, defendant admitted he was with the group when they attacked the victims on the boardwalk, after which he returned to the Pittsburgh Hotel and met up with Reuter. Reuter also testified that defendant was present on the boardwalk during the incident and at the hotel where the group was staying. As it was irrelevant to the case that Bernard and Morales, who did not testify, had identified defendant as one of the five individuals who had been involved in the incident, such testimony was not prejudicial and did not adversely affect the outcome of the trial.

We discern no reason to second-guess the trial judge's imposition of consecutive sentences aggregating eight years in prison. Judge Garofolo followed the correct legal principles and appropriately exercised his discretion. State v. Roth, 95 N.J. 334, 364 (1984). He found aggravating factors three and nine based on defendant's extensive juvenile and adult criminal record, commission of these offenses while on probation and history of drug involvement and violence. He found no mitigating factors. The court then performed the appropriate Yarbough analysis and concluded that a consecutive sentence was warranted because there were two victims. State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 89 L. Ed. 2d 308, 106 S. Ct. 1193 (1986). The judge then concluded that "under a pristine application of aggravating and mitigating factors . . . the imposition of greater than the presumptive [was warranted]" but "[i]n view of the fact that [he would] be giving [defendant] consecutive sentences [he would] not go higher than the presumptive."

Furthermore, defendant's sentence following trial did not result in disparate sentences from his co-defendants who entered guilty pleas. "[D]isparity must be evaluated in terms of 'real time. . .'" State v. Salentre, 275 N.J. Super. 410, 425 (App. Div.), certif. denied, 138 N.J. 269 (1994). Defendant did not receive any period of parole ineligibility, while all co-defendants received an 85% NERA disqualifier. Moreover, defendant failed to present co-defendants' criminal history and record relating to the indictment to demonstrate unequal sentences. State v. Lee, 235 N.J. Super. 410, 416 (App. Div. l989).

 
Affirmed.

(continued)

(continued)

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A-5328-03T4

October 13, 2005