STATE OF NEW JERSEY v. CARLOS PEREZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1772-04T41772-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS PEREZ,

Defendant-Appellant

______________________________________________________

 

Submitted January 11, 2006 - Decided March 16, 2006

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Ind. No. 03-08-1049.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jean M. Hartmann, Designated

Counsel, 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

Defendant Carlos Perez appeals his conviction of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), distribution of CDS, N.J.S.A. 2C:35-10a(1) and 2C:35-5b(3), and distribution of CDS on or near school property, N.J.S.A. 2C:35-5a and 2C:35-7. Pedro Garcia was named as a co-defendant in each charge and Angela Taylor was also charged as a co-defendant on the possession offense.

The State moved for extended term sentencing under N.J.S.A. 2C:43-6(f) and 2C:43-7. The trial judge granted the motion and imposed a seven-year prison term with a three year period of parole ineligibility on the school zone charge, and a concurrent five-year term with two and one-half years of parole ineligibility on the possession charge. The distribution charge was merged into the school zone offense. Appropriate penalties, fees and assessments were also imposed, as well as a six-month suspension of driving privileges.

The State's case was brief and uncomplicated. On July 3, 2003, Lieutenant Paul Schuster of the New Brunswick Police Department was conducting a surveillance of Remsen Avenue between Hardy and Baldwin Streets in New Brunswick. A backup team of Officers Plowucha, Ward, Sabo, and Detective Sutton waited a few blocks away. Schuster's surveillance was conducted from an undisclosed elevated location in a house about 250 feet from the Famosa Restaurant. Using a pair of 20-power binoculars, Schuster saw a man he later identified as defendant enters the Restaurant. Co-defendant Garcia was seen walking in and out of the Restaurant. Defendant came out of the restaurant and stood with Garcia on a number of occasions.

At about 2:50 p.m., Schuster observed co-defendant Taylor, whom he had known "for many years," walk down the block with two young children, stop in front of the restaurant, and speak to Garcia. Garcia, Taylor, and the children then went into the restaurant. Within twenty to thirty seconds, Garcia opened the door, looked up and down the street, and dropped a white tissue packet on the sidewalk before retreating into the restaurant. Taylor picked up the package and opened it. Schuster saw what he believed was a small packet of cocaine. Taylor then rewrapped the package, put it in the left side of her bra, and continued walking down the block.

Taylor stopped at the corner of Hardy and Remsen for about five minutes and then walked back to the restaurant, where defendant was allegedly standing outside. Taylor spoke briefly with defendant, gave him some money, and then went into the restaurant. Defendant returned twenty to thirty seconds later and handed Taylor a small white packet of what Schuster suspected was cocaine. Taylor put that packet into the other side of her bra and again walked down the block. Defendant went back into the restaurant.

At that point, Schuster radioed the backup team and said he saw a "drug transaction go down." He described the buyer as Taylor, a female wearing a white tee shirt, black shorts, and brown boots. He told the backup team to arrest her. Plowucha recognized Taylor and she and the children were stopped by the officers. They told Taylor she was seen in a drug transaction and asked if she had any more. Taylor pulled another packet, wrapped in tissue, from the left side of her bra, at which point she was placed under arrest.

Once Taylor was in custody, Schuster told the team to go to the restaurant and arrest the two sellers. Schuster allegedly provided the names Pedro Garcia and Carlos Perez. In addition, he provided a description of defendant's clothes, which consisted of a white tee shirt, blue jeans, and "unique" shoes.

Detective Sutton and Officers Sabo and Plowucha went to the restaurant. Defendant was sitting at a table. They identified defendant based on Schuster's description of his clothing, as well as Plowucha's familiarity with him. Plowucha could not remember if there were any other patrons in the restaurant. Sutton claimed that the only people present, aside from defendant, were restaurant personnel.

At the time of his arrest, defendant had $220 in cash on his person, an undetermined portion of which he was holding in his clenched fist.

On appeal, defendant raises two issues concerning the fairness of his jury trial, as well as an attack on his sentencing. The asserted trial errors are as follows:

POINT I

THE TRIAL COURT'S FAILURE TO INCLUDE MANY OF THE MODEL CRIMINAL JURY CHARGES AND ITS ALTERATION OF OTHERS DENIED DEFENDANT'S DUE PROCESS AND FAIR TRIAL RIGHTS AND CONSTITUTED REVERSIBLE ERROR. U.S. Const. Amend. V, VI, XIV; N.J. Const. (1947) Art. I, Par. 1 (Not Raised Below)

POINT II

DEFENSE COUNSEL'S NUMEROUS FAILURE TO PROTECT THE DEFENDANT'S RIGHT TO A FAIR TRIAL DEPRIVED HIM OF EFFECTIVE ASSISTANCE OF COUNSEL. U.S. Const. Amend. VI, XIV; N.J. Const. (1947) Art. I, Par. 10 (Not Raised Below)

We agree in part with defendant's first point and therefore have no need to address the second. We comment only briefly on one aspect of defendant's sentencing argument.

Defendant contends that during voir dire, preliminary instructions, and the final charge, the judge "failed to give many of the applicable Model Criminal Jury Charges and omitted key portions of others." At the outset, we reject defendant's attacks on the voir dire and preliminary instructions. We certainly do not foreclose defense counsel from proposing additional inquiries to the prospective jurors on retrial and we are certain the trial judge will give thoughtful consideration to any such requests. Preliminary instructions are not required at all. However, the instructions given here, which dealt essentially with the anticipated course of the trial proceedings, were entirely appropriate. We reject defendant's suggestion that the preliminary instructions must contain everything required to be in the final instructions.

That said, we agree with defendant that the final instructions, although not the subject of objection, were deficient to such a degree as to constitute plain error, R. 2:10-2. First, a charge on identification was clearly required. The entire defense rested on misidentification. Indeed, defense counsel opened to the jury by stating, "this is a case of misidentification, pure and simple." Only one witness, Lieutenant Schuster, identified defendant as the man involved in the drug transaction, an identification made using binoculars from a location nearly a football field distant. Further, in his contemporaneous report of the incident, Schuster repeatedly identified the drug sellers as Pedro Garcia and "Jose Reyes;" he also stated the same identification during his grand jury testimony. At trial he claimed that he had mistakenly referred to defendant as "Jose Reyes," an error that he corrected in a supplementary report in February 2004. Counsel's summation again stressed the identification issue, as did the prosecutor who said, "[t]here's no mistake in identity." And most remarkably, just prior to instructing the jury, the judge himself commented "that there's an identity defense here." We soundly reject the State's assertion that "identification was not an issue in this case." Rather, under these circumstances, an identification charge should have been given, whether requested or not. State v. Cotto, 182 N.J. 316, 325-26 (2005). In this case, the State's corroborative evidence was not so overwhelming as to avoid a finding of plain error. Id. at 326 (citing State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003)). In any event, this error does not stand alone.

In State v. Medina, 147 N.J. 43 (1996), the Court addressed whether certain jury instructions on reasonable doubt satisfied due process concerns. The Court stated the following:

To avoid problems in the future, we instruct trial courts when explaining reasonable doubt to charge the jury that "the prosecution must prove its case by more than a mere preponderance of the evidence, yet not necessarily to an absolute certainty." Victor, [v. Nebraska, 511 U.S., 1, 27, 114 S. Ct. 1239, 1254, 127 L. Ed. 2d 583, 603 (1994)] (Ginsburg, J., concurring in part and concurring in the judgment). Accordingly, we adopt the following definition of reasonable doubt:

The government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is necessary to prove only that a fact is more likely true than not true. In criminal cases, the government's proof must be more powerful than that. It must be beyond a reasonable doubt.

A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of the defendant, after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would harbor.

Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendant's guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you are not firmly convinced of defendant's guilt, you must give defendant the benefit of the doubt and find him not guilty.

We believe the trial courts will better serve the interest of justice if they do not attempt additional definitions of "reasonable doubt." Consequently we direct trial courts not to deviate from the definition contained in this opinion. The failure to adhere to the definition, over an objection, runs the risk of reversible error.

[Id. at 60-61.]

Here, the judge instructed as follows:

Now, as you do this, again, you're reminded that the defendant has pled not guilty and he's therefore, presumed to be innocent. Unless each and every element or part of a criminal charge is proven beyond a reasonable doubt, the defendant must be found not guilty of that charge.

The burden of proving the guilt of the defendant is always on the prosecutor. It never shifts to the defendant. The defendant has no obligation or duty to prove his innocence or to offer proof of his innocence.

So in this case, as you know, the defendant has elected not to testify. It's his constitutional right not to testify, to remain silent, and you are not to consider for any reason and not even to discuss when you are arriving at your verdict the fact that he didn't testify. Okay? What you have to do is to consider the evidence that you did hear and decide this case based upon what you did hear and not hold it against the defendant because he didn't testify or speculate about the reasons. It is his right not to testify, and you're not to in any way consider that during your deliberations.

Now, the term reasonable doubt has been mentioned many times. The law does not require proof in a criminal case that overcomes every possible doubt. A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence that you've heard or it may arise from a lack of evidence, but it's a doubt that a reasonable person would have hearing the same evidence. And when we talk about proof beyond a reasonable doubt, we simply mean proof that leaves you firmly convinced of the defendant's guilt.

If based on your consideration of all the evidence you are firmly convinced that the defendant is guilty of any of the crimes charged, you must find him guilty. If, on the other hand, you are not firmly convinced that the defendant is guilty of any of the crimes charged, you must find him not guilty of that crime or crimes.

While this instruction contained most of the charge from Medina, it omitted the important comparison between reasonable doubt and the preponderance burden of proof in civil cases. That comparison is, we believe, extremely important in conveying to the jurors the formidable hurdle posed by the reasonable doubt standard. Given that Medina was decided nearly a decade ago and its embodiment in the Model Charge, we find it puzzling that the trial judge would choose to truncate the instruction as he did. Medina "direct[ed] trial courts not to deviate from the definition contained [therein]," at "the risk of reversible error." Id. at 61. We need not decide whether the deviation in this case, standing alone, would constitute reversible error. The combination of this error and the omitted identification charge do rise to that level.

Defendant also argues that other portions of the instructions failed to follow the Model Charges or were otherwise incomplete. For example, the court instructed the jury on the use of inconsistent statements to judge credibility, making specific reference to Schuster's police report and grand jury testimony, but failed to instruct the jury that the inconsistent statements could be considered as substantive evidence. N.J.R.E. 803(a)(1). We are inclined to agree with the State that the omission did not likely prejudice defendant in this case. In addition, in the general credibility instruction, the judge omitted several of the factors to be used in judging credibility, including "whether the witness testified with intent to deceive you" and "the reasonableness or unreasonableness of the testimony the witness has given." See

State v. Allen, 308 N.J. Super. 421, 428 (App. Div. 1998) (stressing the necessity of informing the jury of all the credibility factors "especially where such credibility is the issue in the case.")

The importance of correct jury instructions has become a mantra. The charge is the "road map" for the jury. State v. Martin, 119 N.J. 2, 15 (1990). "There is little room for shortcuts or abbreviated charges which may preclude the jury from finding its way." Allen, supra, 308 N.J. Super. at 432. While we do not require that trial judges slavishly follow the Model Charges, those instructions are called models for a reason. They represent the considered judgment of experienced judges and lawyers as to appropriate wording that accurately reflects the law. As such, the Model Charges should be given in full, and not abbreviated, unless there is compelling reason to do so. Of course, as Medina mandates, in the case of reasonable doubt there should be no deviation.

 
As noted earlier, we have no need to address defendant's ineffective assistance of counsel argument. Since there must be a retrial, only one aspect of defendant's sentencing argument merits mention. At sentencing, the judge stated that he had found no mitigating factors and "in the interest of time, the aggravating factors will be set forth on the judgment of conviction." To the contrary, the aggravating factors must not only be identified at sentencing, but must be explained and weighed. State v. Kruse, 105 N.J. 354, 363 (1987). A mere recitation on the judgment of conviction is insufficient to permit us to perform our review function.

Reversed and remanded for a new trial.

(continued)

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A-1772-04T4

March 16, 2006