STATE OF NEW JERSEY v. ALFREDO ALVAREZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3313-04T43313-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALFREDO ALVAREZ,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 1, 2006 - Decided April 10, 2006

Before Judges Conley and Weissbard.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Ind. No. 02-11-4091.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel,

of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for

respondent (Adrienne B. Reim, Deputy Attorney General,

of counsel and on the brief).

PER CURIAM

Alfredo Alvarez appeals his conviction of carjacking, N.J.S.A. 2C:15-2a(2), after a three-day jury trial in November 2004. He was acquitted of two additional charges: possession of a weapon (a knife) under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5d, and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. After denial of post-trial motions for a judgment of acquittal or a new trial, R. 3:20-1, defendant was sentenced to a fifteen-year prison term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, as well as a five-year parole term upon release from prison. Appropriate penalties and assessments were also imposed.

On appeal, defendant presents the following arguments:

POINT I

DEFENDANT'S CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE, AND A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN ENTERED OR A NEW TRIAL ORDERED.

POINT II

THE JURY INSTRUCTIONS ON CARJACKING WERE DEFICIENT IN MULTIPLE RESPECTS, AND THE DEFICIENCIES SINGULARLY AND CUMULATIVELY CONSTITUTED "PLAIN ERROR." (Not Raised Below).

POINT III

THE TRIAL COURT ERRED IN PERMITTING EVIDENCE OF DEFENDANT'S PRIOR CRIMINAL CONVICTION.

POINT IV

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We find no merit in defendant's contentions and affirm.

I

We recount only as much of the facts as are relevant to the issues presented.

On December 15, 2002, Edlene Rosario picked up her preteen daughter from school and drove to her home at 175 Woodside Avenue, Newark. As she parked her Eagle Premier by the curb near her apartment building, defendant approached and asked for a ride. Rosario claimed to have seen defendant in the neighborhood but had never spoken to him before. When Rosario refused defendant's request, he "got right up into [her] face, grabbed [her] hand," and struggled for her keys, which Rosario clutched in her right hand. Rosario yelled for her daughter to get out of the car, which she did.

As the struggle continued, defendant brandished a long, white knife that made Rosario fear for her life, causing her to release the car keys. When defendant entered the car, he tossed the knife onto the passenger seat. Crying and yelling, Rosario clung to defendant through the partially open driver's side window to keep him from stealing her car. When defendant rolled up the window, Rosario was finally forced to step backward into the street.

Meanwhile, defendant's ex-fiancée, Helen Haight, who had been reading a newspaper on the porch of her apartment building across the street, watched the melee between defendant and Rosario. When defendant started to drive away, Haight jumped in front of the car, but defendant drove around her and sped off.

After the police were called to the scene, Haight and Rosario went to the police station where they identified defendant from a photographic lineup. Rosario's car was recovered abandoned in Paterson about a month later with a damaged transmission.

Defendant testified that since he was a mechanic, Rosario had given him custody of her car to fix its faulty transmission. He denied any physical struggle or verbal altercation between him and Rosario over her car and denied that he had threatened her with a knife. He agreed that Haight had attempted to stop him leaving in Rosario's car, but claimed she did so only because she was angry with him due to problems arising from their relationship. According to defendant, he never reached his Paterson destination, where he supposedly intended to repair Rosario's car, because the transmission prematurely "burned out."

Defendant claimed that he tried to notify Rosario about her defunct car two days later by leaving a message with the superintendent of her apartment building, since Rosario supposedly had no functioning telephone. He claimed that the superintendent, whose surname he could not remember, told him to avoid her apartment building because "they" (the Latin Kings, members of a gang who had befriended Haight) were going to break his legs and kill him because of how he had treated Haight. Defendant claimed that he had no idea what had happened to Rosario's car after he pushed it to the side of some Passaic road and placed the ignition key in the glove compartment.

II

In assessing defendant's argument that a judgment of acquittal should have been entered either at the conclusion of the State's case, R. 3:18-1, or following the verdict, we are governed by the standard articulated in State v. Reyes, 50 N.J. 454, 458-59 (1967), which asks:

whether the evidence at that point is sufficient to warrant a conviction of the charge involved. More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt beyond a reasonable doubt.

Defendant contends that the State failed to adduce evidence sufficient to support a guilty verdict on the carjacking charge. Therefore, the trial judge should have entered a judgment of acquittal or ordered a new trial. We disagree.

Here, the jury determined, in answer to a special interrogatory, that defendant had violated N.J.S.A. 2C:15-2a(2), which renders an individual guilty of carjacking "if in the course of committing an unlawful taking of a motor vehicle . . . or in an attempt to commit an unlawful taking of a motor vehicle he:

(2) threatens an occupant or person in control with, or purposely or knowingly puts an occupant or person in control of the motor vehicle in fear of, immediate bodily injury.

The jury found defendant not guilty of violating subsection (1) of the statute, N.J.S.A. 2C:15-2a(1), which prohibits the infliction of bodily injury or the use of force "upon an occupant or person in possession or control of a motor vehicle." In State v. Jenkins, 321 N.J. Super. 124 (App. Div.), certif. denied, 162 N.J. 197 (1999), the defendant had been indicted only under subsection (2) of the statute. Id. at 129. In concluding that the evidence was insufficient to support a conviction under that subsection, we held that the State was required to "present evidence on the issue of proximity to prove that the victim was either an 'occupant or in control of' the vehicle." Id. at 131. We went on to explain:

The victim's proximity to the vehicle is relevant in several regards. First, it clearly bears upon the victim's capacity to control the vehicle, either in terms of his own ability to operate it or to bar entry by others. It is relevant as well to establish that defendant's actions exposed the victim to a particular risk of harm beyond mere loss of the vehicle.

[Ibid.]

We were "satisfied that subsection (2) of the statute requires proof that the 'occupant or person in control' of the vehicle was placed within a heightened zone of danger with relationship to the subject vehicle." Id. at 131-32. Constructive possession is not sufficient to satisfy the "in control of" requirement, given that "possession" only appears in subsection (1). Id. at 132. Since subsection (1) deals with the actual use of force, it was appropriate for the Legislature to give that subsection a broader sweep by including the concept of possession, and thereby constructive possession, within its terms, as opposed to the more restrictive scope of subsection (2) which "addresses the possibility of ensuing injury, rather than actual injury." Id. at 132-33.

With this analytical construct in mind, we turn to defendant's claim. Defendant argues that Rosario had exited her vehicle when he accosted her and was not in close enough proximity to the vehicle to satisfy the standard enunciated in Jenkins. The argument is without merit. The evidence obviously credited by the jury was more than sufficient to support a conclusion that the struggle between defendant and Rosario took place in close proximity to the driver's side door of the vehicle.

For the same reasons, defendant's motion for a new trial, R. 3:20-1, on the ground that the verdict was against the weight of the evidence, also has no merit. A guilty verdict should not be set aside under that rule unless it "clearly and convincingly appears that there was a manifest denial of justice under the law." After hearing defendant's arguments and reviewing the evidence, Judge Ravin rejected the new trial motion. We fully concur in that disposition.

III

Defendant attacks the carjacking instructions as being deficient in several aspects. Since no contemporaneous objection was made, we review under the plain error standard, which requires that any error be clearly capable of producing an unjust result. R. 1:7-2; R. 2:10-2. However, it is also settled that "incorrect instructions of law are poor candidates for rehabilitation under the harmless error theory." State v. Weeks, 107 N.J. 396, 410 (1987). Indeed, an incorrect charge on the elements of an offense almost always constitutes reversible error. State v. Rhett, 127 N.J. 3, 7 (1992); State v. Vick, 117 N.J. 288, 289 (1989).

Here, the trial judge read the carjacking count of the indictment to the jury and then proceeded to read the statute, stating as follows:

That particular statute in pertinent part reads as follows:

A person is guilty of carjacking if in the course of committing an unlawful taking of a motor vehicle or in an attempt to commit an unlawful taking of a motor vehicle, he, A, inflicts bodily injury or uses force upon an occupant or person in possession or control of a motor vehicle, or threatens an occupant or person in control of a motor vehicle with or purposely puts an occupant or person in control of the motor vehicle in fear of immediate bodily injury.

The judge then continued:

In order for you to find the defendant guilty of carjacking, the state is required to prove each of the following elements beyond a reasonable doubt:

1, that the defendant was in the course of committing an unlawful taking of a motor vehicle, and that while in the course of committing an unlawful taking of a motor vehicle the defendant knowingly inflicted bodily injury or used force upon an occupant or person in possession or control of a motor vehicle, or knowingly threatened an occupant or a person in control with or purposely or knowingly put an occupant or person in control of the motor vehicle in fear of immediate bodily injury.

After explaining what would constitute an unlawful taking of a motor vehicle, the instructions continued:

In addition to proving beyond a reasonable doubt that the defendant was in the course of committing an unlawful taking of a motor vehicle as I have defined in the course of, the state must also prove beyond a reasonable doubt that while in the course of committing that unlawful taking of that motor vehicle the defendant knowingly inflicted bodily injury or used force upon an occupant or person in possession or control of the motor vehicle.

The phrase bodily injury means physical pain, illness, or any impairment of physical condition. Force means any amount of physical power or strength used against the victim to take control of the motor vehicle. The force need not entail pain, or bodily harm, and may not leave any mark.

Nevertheless, the force must be directed against the victim, and not merely the person's vehicle. Or the defendant knowingly threatened an occupant or person in possession or control of a motor vehicle with or purposely or knowingly put that person in fear of immediate bodily injury.

I've already explained bodily injury. Although no bodily injury may have resulted, the prosecution must prove beyond a reasonable doubt that the defendant did threaten the victim with or purposely and knowingly put her in fear of such bodily injury.

The defendant's threat or use of force must be directed against either an occupant or a person in possession or control of a motor vehicle.

However, the person need not actually be inside the motor vehicle when force is employed or threatened.

A person may be either an occupant or in possession or control of a motor vehicle, even when she temporarily steps out of the motor vehicle.

Defendant concedes that the judge gave a correct instruction on subsection (1), but argues that the instruction concerning subsection (2) was erroneous because in reading that subsection the second time, the judge referred to "an occupant or person in possession or control of a motor vehicle. . . ." (emphasis added). As defendant correctly notes, the reference to possession did not belong in subsection (2). In charging in this manner, the judge was, following the Model Jury Charge (Criminal), Carjacking, (N.J.S.A. 2C:15-2) (1998), which, as defendant points out, conflicts with our holding in Jenkins that subsection (2) is not satisfied by constructive possession. In addition, defendant argues that the charge was deficient in failing to require a finding of the victim's proximity to the vehicle and the enhanced risk of harm occasioned thereby, also in accordance with Jenkins. From this, defendant argues that the charge "permitted the jury to conclude that defendant was guilty merely because Rosario possessed her car keys and thus was in constructive possession of her auto when defendant twisted her arm and threatened her with a knife." However, as the State correctly responds, the judge did not instruct on constructive possession at all. And we agree that the lay jury would not likely be led to the legal concept of constructive possession, see Model Jury Charge (Criminal), Possession, (N.J.S.A. 2C:2-1) (1998), from the mere mention of possession. Rather, the jurors would most likely understand possession as being synonymous with control, in accordance with the dictionary definition of the term, see Webster's II New College Dictionary (1995) at 361-62, which is the same as the legal definition. Model Jury Charge, supra; State v. Mendez, 175 N.J. 201, 212 (2002) (quoting State v. Jackson, 326 N.J. Super. 276, 280 (App. Div. 1999)). Thus, even though the word possession was erroneously included in the charge on subsection (2), it was superfluous and incapable of harm. Of course, had defendant raised the objection at trial, the judge would have undoubtedly corrected what was obviously a slip of the tongue. State v. Cordero, 293 N.J. Super. 438, 442 (App. Div. 1996), certif. denied, 147 N.J. 577 (1997). And, while the charge should have included the concept of proximity, its omission was harmless under the facts of the case, which we outlined earlier.

Further, defendant contends that the charge failed to explain to the jury that its consideration of carjacking was limited to the indictment's allegation that defendant twisted Rosario's arm and threatened her with a knife. Without such a limitation, defendant argues, the jury may have based its verdict on a finding that defendant induced fear of immediate bodily injury in Rosario's daughter who remained in the vehicle while her mother, who was outside, struggled with defendant, or that defendant induced fear in Rosario when he rolled up the window, forcing her to remove her arm from the car. We disagree. In light of the proofs, and in the absence of any indication that defendant was prejudiced, the jury was not restricted to the precise factual allegation of the indictment. See State v. Lawrence, 142 N.J. Super. 208, 215 (App. Div. 1976); State v. Lamb, 125 N.J. Super. 209, 217 (App. Div. 1973). Rosario's testimony was that her daughter had left the car before defendant entered it, and the State never argued, in opening or summation, that the daughter was a victim. Thus, there was no need for the special instruction defendant urges.

In sum, we conclude that the charge was for the most part unassailable, and in the few instances where it was not, any error was harmless.

IV

Defendant argues that the judge erred in allowing him to be impeached with a September 1994 sentence for burglary. After hearing argument, the judge ruled that a sanitized version of the conviction would be admissible for impeachment. See State v. Brunson, 132 N.J. 377, 391-92 (1993). The judge indicated a disposition to exclude the ten-year-old conviction but for defendant's 2004 disorderly persons conviction of receiving stolen property. See State v. Sands, 76 N.J. 127, 144-45 (1978). Defendant argues on appeal, as he did at trial, that the conviction was remote and that remoteness was not cured by the intervening disorderly persons conviction.

The admissibility of a prior conviction is committed to the sound discretion of the trial judge. Id. at 144. The judge is to consider the seriousness of the prior offense, as well as any intervening convictions which may demonstrate that defendant's disregard for societal norms has not been cured by the passage of time. Id. at 144-45. There is no requirement in that regard that the intervening offense itself be a crime that is admissible for impeachment under N.J.R.E. 609. A disorderly persons offense is permissible for that purpose. As a result, we discern no abuse of discretion on the part of the judge in allowing impeachment by the 1994 conviction.

V

Defendant argues that his fifteen-year NERA sentence was excessive. First, we note that carjacking has no presumptive term. State v. Berardi, 369 N.J. Super. 445, 451 (App. Div. 2004), appeal dismissed, 185 N.J. 250 (2005). As a result, State v. Natale, 184 N.J. 458 (2005) (Natale II) is not applicable. See State v. Abdullah, 184 N.J. 497, 507-08 (2005) (Natale II is not applicable to murder which has no presumptive term). A proper sentence for carjacking requires adherence to the guidelines established by State v. Zadoyan, 290 N.J. Super. 280 (App. Div. 1996); see also State v. Henry, 323 N.J. Super. 157, 163-65 (App. Div. 1999). We reject defendant's argument that the judge did not properly find and weigh the aggravating (and lack of mitigating) factors in applying the Zadoyan criteria. Natale II, supra, 184 N.J. at 489. Our standard of review is deferential, and the sentence does not shock our judicial conscience. Ibid.

Affirmed.

 

In this case, defendant was indicted under subsection (1), charging that he "did inflict bodily injury or use force upon an occupant or person in possession or control of a motor vehicle, to wit: by physically twisting Edlene Rosario's arm and threatening said victim with a knife." Notwithstanding, the jury was charged on both subsections (1) and (2) and the verdict sheet covered both sections. Defendant does not complain in that regard, having agreed to such a submission.

The State points out that this is an entirely different argument from that advanced to the trial judge, and asks us to refuse to consider it. We decline the invitation since it would only lead to a post-conviction relief application alleging ineffective assistance of counsel.

The Model Charge should be corrected to accord with Jenkins in the several respects identified in this opinion. We will provide a copy of this opinion to the Supreme Court's Committee on Criminal Charges.

Defendant's Adult Presentence Report indicates that he "maxed out" on his 1994 conviction on February 16, 1998. Judged from that date, his conviction was somewhat less than seven-years old at the time of this trial. See Fed. R. Evid. 609(b); United States v. Daniel, 957 F.2d 162, 168 (5th Cir. 1992).

(continued)

(continued)

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A-3313-04T4

April 10, 2006