STATE OF NEW JERSEY v. JUAN FRANCISCO GRANDE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0422-04T40422-04T4

A-2819-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN FRANCISCO GRANDE,

Defendant-Appellant.

___________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN FELEX ORELLANA,

Defendant-Appellant.

___________________________________

 

Submitted May 9, 2006 - Decided June 6, 2006

Before Judges Skillman and Axelrad.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-07-0721.

Yvonne Smith Segars, Public Defender, attorney for appellants (David Henry, Designated Counsel, of counsel and on the brief in A-0422-04T4; Roger L. Camacho, Designated Counsel, of counsel and on the brief in A-2819-04T4).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendants Juan Grande and Juan Orellana were found guilty in a joint trial of second-degree robbery, in violation of N.J.S.A. 2C:15-1. The trial court imposed a seven-year term of imprisonment upon Grande and an eight-year term upon Orellana. Both sentences are subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The robbery was committed on a street in Elizabeth at approximately 9:50 p.m. on March 16, 2003. The robbery was observed from about 100 feet away by Sergeant Andrew King of the Elizabeth Police Department, who was sitting in a marked police car parked in a driveway. King saw the robbers follow the victim, Ludin Aguirre, who was highly intoxicated, down the street, knock him down, begin punching and kicking him, and then search his pants and jacket pockets. King drove his patrol car towards the robbers, who released the victim and fled when they saw the headlights of King's car. King was able to observe the two robbers from a distance of approximately fifteen feet as he drove towards them.

Sergeant King pursued and apprehended Orellana without losing sight of him. Once Orellana was handcuffed, King used his police radio to describe the other robber to a police dispatcher.

A short time later, Sergeant Daniel Geddes observed a person standing in line in a McDonald's who fit Sergeant King's description of the other robber. Geddes had observed this same person running from the scene of the robbery immediately after it was committed. In response to a police radio transmission, Sergeant King went to the McDonald's where Grande was being detained and positively identified him as the other robber.

At trial, Sergeant King identified Grande and Orellana as the two persons he had seen robbing Aguirre, and Sergeant Geddes identified Grande as the person he had seen running from the scene of the robbery shortly after it was committed. In addition, the State presented evidence of King's out-of-court identifications of Grande and Orellana immediately after the robbery.

The victim, Aguirre, testified he had about $120 in his wallet when he went to a bar, where he drank heavily. On his way home, he was struck from behind by assailants who demanded money. When he responded that he did not have any money, the assailants punched him while he was on the ground and removed his "belongings" from his pockets. Due to his intoxicated condition at the time of the robbery, Aguirre was unable to identify the perpetrators.

Both Grande and Orellana appealed their convictions. We now consolidate the appeals.

Grande presents the following arguments:

I. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR PHYSICALLY IDENTIFYING HIM TO THE ONLY EYEWITNESS DURING AN IN-COURT IDENTIFICATION PROCESS, WHICH RESULTED IN AN IMPERMISSIBLY SUGGESTIVE IDENTIFICATION IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

II. THE DEFENDANT WAS DENIED A FAIR TRIAL AND A MISTRIAL SHOULD HAVE BEEN GRANTED AFTER JURORS SAW THE CO-DEFENDANT UNDER APPARENT CUSTODY OF SHERIFFS WHILE IN THE COURTROOM.

III. THE SENTENCE IMPOSED ON THE DEFENDANT WAS MANIFESTLY EXCESSIVE.

Orellana presents the following arguments:

I. THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO GRANT DEFENSE COUNSEL'S MOTION FOR A MISTRIAL WHEN IT BECAME OBVIOUS TO THE JURY THROUGH THE ACTIONS OF THE SHERIFF'S OFFICERS THAT ORELLANA WAS IN CUSTODY TO HIS EXTREME PREJUDICE. (U.S. Const. Amends. V, VI & XIV; N.J. Const. (1947) Art. I, Para. 10).

II. THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO CHARGE ATTEMPTED THEFT UNDER N.J.S.A. 2C:5-1a IN THE CASE AT BAR IN WHICH THE VICTIM WAS TOO INTOXICATED TO KNOW WHETHER HE HAD ANYTHING TO TAKE OR WHETHER ANYTHING WAS TAKEN, IN WHICH THE POLICE ARRIVED SO QUICKLY, AS TO FOIL ANY THEFT BEFORE IT TOOK PLACE AND IN WHICH THE PROSECUTOR ENCROACHED UPON THE TRIAL COURT DUTY BY ARGUING AN ERRONEOUS AND INCOMPLETE STATEMENT OF THE LAW ON ATTEMPT IN HIS SUMMATION. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10) (Partially Raised Below).

III. ORELLANA'S MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED. (U.S. Const. Amends. 6 & 14; N.J. Const. (1947) Art. I, Para. 10).

IV. ORELLANA'S SENTENCE WAS UNCONSTITUTIONAL ILLEGAL AND EXCESSIVE (U.S. Const. Amend. VI; N.J. Const. (1947) Art. I, Para. 10).

We agree with Orellana's argument that because he was sentenced to an eight-year term of imprisonment, which exceeded the seven-year presumptive term for a second-degree offense, N.J.S.A. 2C:44-1(f)(1)(c), he is entitled to be resentenced without consideration of the presumptive term in conformity with State v. Natale, 184 N.J. 458, 487-89 (2005). Defendant's other arguments are without merit. R. 2:11-3(e)(2). The only arguments that merit any discussion are the ones presented under Points I and II of defendants' briefs.

Orellana argues under Point I of his brief and Grande argues under Point II of his brief that the trial court committed reversible error in denying Orellana's motion for a mistrial when the Sheriff's officers made it obvious that Orellana was in custody and was considered dangerous. During jury deliberations, Orellana moved for a mistrial on the ground that the jury could observe that whenever Orellana was in the courtroom, there was always "a sheriff's officer very close by," which could lead the jury to conclude that he was in custody. In arguing that the jury's observation of security personnel near Orellana required the declaration of a mistrial, defendants rely upon cases which hold that it is unfairly prejudicial for a defendant to be observed by the jury in shackles or prison garb. See, e.g., State v. Damon, 286 N.J. Super. 492, 497-99 (App. Div. 1996); State v. Carrion-Collazo, 221 N.J. Super. 103, 112-13 (App. Div. 1987), certif. denied, 110 N.J. 171 (1988).

However, both the Supreme Court of the United States and our Supreme Court have recognized that "the deployment of security personnel in a courtroom is not inherently prejudicial." State v. Zhu, 165 N.J. 544, 553 (2000) (citing Holbrook v. Flynn, 475 U.S. 560, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986)). There was nothing unusual about the courtroom security arrangements in this case, such as a large number of heavily armed sheriffs' officers. Orellana's motion was based solely on the presence close to him of a single Sheriff's officer. We believe jurors would expect the presence of security personnel near a defendant charged with a serious offense such as robbery, and there is no showing that the deployment of security personnel in this case was excessive or particularly conspicuous.

Grande argues under Point I of his brief that he was denied a fair trial as a result of the prosecutor's identification of him to Sergeant King at trial. This argument is based on the allegation that when the prosecutor asked King on direct examination, "[w]hich way did defendant Grande, this individual here, run?" he placed his hand on Grande's arm. After defense counsel objected to the prosecutor having informed King which defendant was Grande, the trial court told the jury: "[T]here's some dispute as to whether this police officer can identify these people right off the top of his mind or if he was inadvertently tipped in some way by the prosecutor, so we're going to go over evidence again with regard to identification." King was then asked additional questions regarding his identification of Grande:

Q. Sergeant King, which one is defendant Grande?

A. He's sitting there with the -- the curlier hair.

Q. And prior to me asking you which one [defendant] Grande was, did I in any way tip you off to who he was?

A. No.

. . . .

Q. Prior to me going over there and saying which one is defendant Grande, did you already know who he was?

. . . .

THE WITNESS: I knew Mr. Grande when I saw him in court today.

Q. Do you recognize him from that night?

A. Yes, I do.

Even if King's in-court identification of defendant was suggestive, this does not require a reversal of his conviction. In-court identifications are not required to meet the same standards of reliability as pretrial identifications. State v. Clausell, 121 N.J. 298, 327 (1990). Even though the circumstances of an in-court identification may be suggestive, the jury has the opportunity to observe the witness during the identification process and thus can make its own evaluation of the probative value of the identification in light of the circumstances under which it was made. Id. at 328. Thus, if the prosecutor touched Grande or otherwise suggested to King which defendant was Grande, the jury was able to observe any such suggestiveness. Moreover, the critical identification of Grande as one of the perpetrators was not the one Sergeant King made at trial but was instead the one he made at the scene immediately after defendant's arrest. Defendant does not challenge the admissibility of evidence of that identification.

Orellana argues under Point II of his brief that the trial court erred in failing to instruct the jury regarding attempted theft, as an alternative to actual theft, as an element of robbery. The court instructed the jury that one of the elements of robbery the State had to prove was that defendants were "in the course of committing a theft" when they knowingly inflicted bodily injury or used force upon the victim. The court did not instruct the jury regarding the offense of attempted theft. Defendant contends that an explanation of the offense of attempted theft was an essential part of the jury instructions in this case because there was no evidence that anything was taken from the victim. However, the victim in fact testified that his wallet and its contents were taken during the robbery. Moreover, even assuming the victim's highly intoxicated condition created a factual issue regarding the accuracy of this testimony, defendant could only have benefited from the court's omission of a jury instruction concerning attempted theft because the jury would have been required to acquit defendant if it found the State's proofs insufficient to prove an actual theft.

Because there was evidence of an actual theft of the victim's wallet and its contents, this case is distinguishable from State v. Gonzalez, 318 N.J. Super. 527, 532-37 (App. Div.), certif. denied, 161 N.J. 148 (1999), in which we held that the trial court's failure to instruct the jury regarding attempted robbery required a reversal of the defendant's felony murder conviction because the State failed to present any evidence of an actual theft from the victim and thus attempted theft was the sole predicate upon the defendant could have been found guilty.

Accordingly, we affirm both defendants' convictions. We vacate Orellana's sentence and remand for resentencing in conformity with Natale. We affirm the seven-year term imposed upon Grande. However, we remand his case to the trial court for entry of an amended judgment of conviction that deletes the statement that Grande's sentence was the product of a "negotiated plea" and reflects that he was found guilty by a jury.

 

(continued)

(continued)

10

A-0422-04T4

June 6, 2006