STATE OF NEW JERSEY v. ERIC ZILLERUELLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3421-04T43421-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC ZILLERUELO,

Defendant-Appellant.

__________________________________

 

Submitted June 5, 2006 - Decided June 23, 2006

Before Judges Lintner and Holston, Jr.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen County,

02-04-0764.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a nine-day jury trial, defendant, Eric Zilleruelo, was found guilty of the lesser-included offense of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), on the second count of a four-count indictment. He was found not guilty of the remaining counts. The judge imposed a six-year sentence with 85% parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, together with appropriate fines and penalties. Defendant appeals and we affirm.

On September 23, 2001, Vystas Paukstis and his wife, Renata, were attending a birthday party at a Hawthorne restaurant. To Renata's chagrin, Vystas had too much vodka to drink. At approximately 3:00 a.m., they left the restaurant for their home, with Renata driving. Vystas wanted to smoke a cigarette in the car. Renata objected, and then stopped the car leaving Vystas off on the side of River Road in Elmwood Park, in order for him to smoke outside the car. Because there was no shoulder at the spot she stopped, she proceeded, intending to turn around at her earliest opportunity.

Vystas began to walk along the road. He noticed a group of people sitting in a picnic area near the marina area along the Passaic River. The group began clapping, and Vystas responded by waving to them. As he continued to walk along the guardrail, he was jumped by a group of men. The group beat Vystas with fists, kicked him, and struck him with something that he thought looked like a baseball bat. Although he could not identify any of the group, he estimated that it consisted of five or more men.

Meanwhile, Renata made a U-turn and returned to the scene about three minutes later. As she approached, the area where she left Vystas off, she saw him lying in the roadway. She noticed a blood stain that was getting bigger. A woman who had stopped her car called the police. Vystas was taken to St. Joseph Hospital in Paterson. He had been stabbed in the buttocks near the rectum and lower back. He also suffered from kidney wounds. Vystas' treating physician indicated that he would have died if his injuries had not been treated. He required multiple surgeries and blood transfusions, was placed on a respirator, and developed an infection in his kidney. Vystas spent fifteen days in the Intensive Care Unit and was eventually discharged from the hospital three weeks after the attack. He has a large scar on his back near the buttocks and one that extends from the breastbone to the pubic bone.

At first, the investigation that followed turned up no leads. The Elmwood Police Department sought assistance from the media, asking that anyone who had information about the attack to contact the Police Department. As a result, the police learned that Denyse Cottone was a potential witness. Cottone advised the police that she had been at the scene with Alyse Lubowiecki and that Lubowiecki could identify the individuals involved in the attack. Based upon information received from Lubowiecki, the police then contacted and interviewed four additional women who were at the scene: Tonja Hopseker, Sandra Riley, Chrissy Morton, and Chelsea Caracozza. As a result, the police arrested defendant and codefendants Christopher Dunston, Vincent Gerardo, Christopher Jarosz, James Morton, and Yamen Khawatmi, along with two juveniles, M.M. and A.S.

All the women, except Chrissy Morton, testified at trial. Their collective testimony established that the group began at Morton's house where they listened to music and watched television. They eventually arrived at the marina area between 1:30 and 2:00 a.m. Cottone, Lubowiecki, Riley, and Caracozza all identified defendant as participating in the beating. Cottone testified that after Vystas exited the car, M.M. and James Morton walked over to the man and began to kick and punch him. Defendant and the remaining codefendants ran over and joined in. Cottone identified M.M. as having had a knife and that he stated, "I stabbed him." Lubowiecki, who had been dating defendant at the time, stated that Jarosz was the first to reach Vystas and defendant and the others then joined in. Lubowiecki attempted to grab defendant by the arm to pull him away, however, he paid no attention to her and continued to participate in the group beating. Riley testified that someone shouted, "[l]et's get him," following which the group commenced the beating. Hopseker, who was drunk, said that she could hear sounds of the assault and someone saying, "[g]ive me your money." Caracozza identified M.M. as having a knife and admitting that he stabbed the victim. She also identified defendant as participating in the beating.

Defendant testified that Jarosz was the first to run over to Vystas. Jarosz hit Vystas on the head. M.M. and James Morton, followed by A.S. and Khawatmi, joined in, and jumped on top of the victim. Defendant stated that he and Gerardo were the last to join in. When he arrived, there was a pile of people on the ground and he kicked into the pile a couple of times. He stated that he did not know M.M. had a knife, although he knew there was a knife at Morton's, and he never intended to hurt the man or rob him. Although he did not know whether he actually made contact with the victim, he acknowledged that he had blood on his shoes. He claimed that he did not know why he "joined those guys . . . [i]t just happened . . . it was a mistake."

On appeal, defendant raises the following points:

POINT I

COMMENTS MADE BY THE PROSECUTOR IN SUMMATION CONSTITUTE PLAIN ERROR (NOT RAISED BELOW).

(A) THE PROSECUTOR IMPROPERLY SUGGESTED THAT THE INDICTMENT CONSTITUTED PRIMA FACIE EVIDENCE OF DEFENDANT'S GUILT. (NOT RAISED BELOW).

(B) THE PROSECUTOR IMPROPERLY MADE A GENERIC ACCUSATION THAT THE DEFENDANT TAILORED HIS TESTIMONY. (NOT RAISED BELOW).

(C) THE PROSECUTOR IMPROPERLY IMPUGNED DEFENSE COUNSEL AND THE DEFENSE. (NOT RAISED BELOW).

(D) THE PROSECUTOR IMPROPERLY ENGAGED IN NAME CALLING. (NOT RAISED BELOW).

(E) VICTIM IMPACT STATEMENTS IN THE PROSECUTOR'S SUMMATION WERE IMPROPER (NOT RAISED BELOW).

POINT II

THE SIX (6) YEAR BASE CUSTODIAL SENTENCE IMPOSED ON DEFENDANT'S CONVICTION FOR AGGRAVATED ASSAULT ON THE COUNT TWO WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

We consider first defendant's assertions concerning the propriety of the prosecutor's summation. We initially note that defendant's counsel made no objection to the comments now challenged. We must, therefore, review the asserted errors under the plain error standard, State v. Macon, 57 N.J. 325, 333 (1971), which requires us to disregard any error that is not "clearly capable of producing an unjust result." R. 2:10-2. In other words, the error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise would not have reached." Macon, supra, 57 N.J. at 336.

We briefly describe the applicable legal principles when addressing claims of prosecutorial misconduct. In reviewing alleged prosecutorial misconduct, we consider: (1) whether defense counsel objected in a timely and proper fashion to the remarks; (2) whether the offending remarks were withdrawn promptly; and (3) whether the court gave the jury curative instructions. State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); State v. Setzer, 268 N.J. Super. 553, 566 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). Where, as here, the defendant's lawyer fails to object at trial, we may legitimately infer that counsel did not consider the remarks to be inappropriate or prejudicial. State v. Vasquez, 265 N.J. Super. 528, 560 (App. Div.), certif. denied, 134 N.J. 480 (1993).

When prosecutorial misconduct is being raised for the first time on appeal, we need only be concerned with whether "the remarks, if improper, substantially prejudiced the defendant['s] fundamental right to have the jury fairly evaluate the merits of [his] defense, and thus had a clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960). Even where a prosecutor has been guilty of misconduct, reversal of a defendant's conviction is not necessary unless the conduct was so egregious that it deprived the accused of a fair trial. State v. Ramseur, 106 N.J. 123, 322 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993).

A prosecutor may make comments on the evidence and the inferences that may reasonably be drawn from the proofs. State v. Timmendequas, 161 N.J. 515, 587 (1999); State v. Frost, 158 N.J. 76, 82 (1999); State v. Harris, 156 N.J. 122, 194 (1998); State v. Perry, 65 N.J. 45, 47-48 (1974); State v. Farrell, 61 N.J. 99, 103 (1972); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969). It is inappropriate, however, for a prosecutor to refer to matters that are not fairly supported by the evidence. State v. Bogen, 13 N.J. 137, 140, cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953).

In evaluating a claim of error, we are obliged to recognize that a prosecutor may argue the State's case in a forceful manner. Setzer, supra, 268 N.J. Super. at 565. It is not unusual to find that criminal cases are tried with some degree of emotion. A "prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall." Johnson, supra, 31 N.J. at 510-11. Within this general analytical framework, we address defendant's challenges to the prosecutor's closing arguments.

First, defendant challenges the following underlined references the prosecutor made to the indictment:

Counsel held up that indictment and he said repeatedly, the State caused this. The prosecutor and the police brought this here. It's their fault. This was a miscarriage of justice. These weren't his exact words. He used words, it's a product of the prosecutor and the police. It's an incompetent document. Folks, you may have heard in your introductions back in the jury room when you first got here, you saw a video or you may know from your own experience, some of you may have served on grand jury, the prosecutor and the police do not generate an indictment. A grand jury generates the indictment.

Folks like yourselves, impartial, not associated with the State or with the defense. They listen to cases being presented and they return indictments or no bills if they don't find evidence in support of it, and the standard immediately is less, but nonetheless folks, it's the Grand Jury which brings this indictment here, not me. I wasn't there.

Not the police, the grand jury considered evidence, and, they return it and that's why we're here. . . .

But to indict, the State and the police and the prosecutor as now conspiring to create a document that knowingly was false . . . there is no information to support it, it's just not fair and not right, and for someone who educated everyone here on the history back to the magna carta, that is not a fair characterization.

[Defense counsel] knows, as well as I, over three years this indictment still stands. It was never dismissed, and I submit, folks, at the end of this summation, when you consider the charges, you, too they're not dismissed, the indictment. But, in fact, you're going to consider what he is responsible for . . . . (emphasis added).

It is improper to argue that the grand jury found sufficient probable cause to have a true bill returned against a defendant because it implies that the grand jury's indictment is a consideration that should influence a petit jury to convict. State v. Green, 313 N.J. Super. 385, 391 (App. Div. 1998). In State v. Johnson, 65 N.J. 388, 390-91 (1974), the Court held that a trial judge's comments that "'an indictment, far from being a mere allegation, constitutes a finding by a Grand Jury that a basis exists for subjecting the accused to a trial, to a trial before a jury such as you,'" constituted plain error because it suggested to the jury "that an indictment of itself constitutes a prima facie finding by a Grand Jury as to defendant's guilt."

The comments now challenged by defendant were in response to the defense's closing remarks, which included statements that the indictment "came about through someone in the prosecutor's office," that it was "incompetent," represented "overcharging," and that in presenting the indictment the prosecutor's office did not do its job. Defendant argues that the following underlined remarks by the prosecutor were tantamount to suggesting that the indictment constituted a prima facie case.

[N]o knife is used. Only think about that. There is no knife used and this guy gets . . . beat up, okay.

Is that attempted murder?

Maybe.

I suggest some of you are going to come to that conclusion. You throw the knife in there, I suggest it's a no brainer. You can't just point to someone else, he used it not me, therefore I'm not innocent. Its too easy.

And when we charge with that initially, we don't have a trial. There is no trial before they indicted them. No trial like this. At the time they have information to suggest [the defendant is] involved . . . .

. . . .

It's happening in front of his eyes, even if he didn't know the knife before . . . .

You throw a knife in there, certainly aggravated assault . . . .

The Judge is going to read you some lesser included offenses . . . .

Defendant's argument is not persuasive. He takes these comments out of context, as they did not relate to the prosecutor's previous remarks about the grand jury but instead the information that the State had when it initially charged defendant with attempted murder rather than the lesser-included offense of aggravated assault and accomplice liability on which the jury would be instructed. The judge provided the following curative instruction respecting the grand jury indictment:

This defendant . . . stands before you on an indictment returned by the Grand Jury, charging him with the four counts that you are now aware of. As I've already told you and remind [you] once again, the indictment is not evidence of the defendant's guilt on any of the charges. An indictment, again, is a step in the procedure to bring the matter before the Court and jury for your ultimate determination as to whether the defendant is guilty or not guilty on the charges stated.

When reviewing the State's response, we "must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo." United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985). We are satisfied that the prosecutor's remarks concerning the indictment and the grand jury, in the context in which they were made, did not suggest that the indictment was prima facie evidence of guilt but was an attempt to balance the scales by answering defense counsel's argument. We do not perceive that the State's invited response unfairly prejudiced defendant. State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991). Moreover, the judge's instructions were sufficient to ameliorate any harm.

Next, defendant asserts that the prosecutor improperly accused defendant of generic tailoring of his testimony. While this case was pending appeal, our Supreme Court decided State v. Daniels, 182 N.J. 80 (2004), which dealt with the issue of whether it is proper for a prosecutor to suggest that a defendant tailored testimony to meet the facts testified to by other witnesses. In Daniels, the prosecutor argued that the defendant listened to the entire case, including the witness who testified to "facts he can't get past" and chose "to craft his version to accommodate those facts." Id. at 87.

The Court in Daniels recognized "two categories of prosecutorial accusations of tailoring." Id. at 98. The first type, generic tailoring accusations, occur "when the prosecutor despite no specific evidential basis that defendant has tailored his testimony, nonetheless attacks the defendant's credibility by drawing the jury's attention to defendant's presence during trial and his concomitant opportunity to tailor his testimony." Ibid. The second type, specific tailoring accusations occur when a prosecutor makes specific accusations of tailoring beyond "that the defendant was simply present at the trial and heard the testimony of other witnesses." Id. at 98-99.

Generic tailoring accusations are not permitted. Specific tailoring accusations, however, are allowed so long as the prosecutor's comments are "based on the evidence in the record and the reasonable inferences drawn therefrom." Id. at 99. Moreover, when commenting on specific tailoring, a prosecutor may "not refer explicitly to the fact that the defendant was in the courtroom or that he heard the testimony of other witnesses, and was thus able to tailor his testimony" to accommodate the testimony given by those witness.

Defendant contends that the prosecutor accused him of generically tailoring his testimony. We disagree. Although the prosecutor used the words "fashion[ed]," "calculated," and "designed" in describing defendant's testimony, he did not argue that defendant listened to the testimony given by the other witnesses and crafted his version to accommodate their testimony. Indeed, the prosecutor attacked defendant's credibility by arguing that defendant's testimony was fashioned to avoid some of the inconsistencies in the statement he gave to the police three years earlier and his testimony at trial. We are satisfied that the prosecutor's comments did not violate the proscription against accusations of generic tailoring enunciated in Daniels.

Defendant next asserts that the prosecutor impugned defense counsel and participated in name-calling. At one point in his summation while commenting on the defense attorney's cross- examination of Cottone's decision to no longer socialize with Lubowiecki and her friends, the prosecutor remarked that defense counsel was "bringing himself down to the level of these kids . . . ." Specifically, the prosecutor said:

Counsel focused on his closing argument about Denyse Cottone and the reason for the relationship breakup.

Does anybody sitting here really care? Does it really weigh on the defense in this case?

But for some reason he put that in there. He . . . could have gone longer, but that's something he wanted to throw out there, as just bringing himself down to the level of these kids and kind of identifying with this case.

But folks it's a distraction[]. The only reason you heard []questions and responses about the [] relationship was for one person only -- one reason only.

The State wants you to consider all of the testimony from all of these witnesses and find it to be credible. If any witness has any aversion to a particular defendant, any problem with a defendant, any ill will or a motive against a defendant, you need to know about that, because that's going to weigh very heavily on what credibility you give the witness. That's the only reason he cares about Denyse Cottone [and] Alyse Lubowiecki.

The State argues, and we agree, that the prosecutor's response remark was not imprudent, but instead designed to respond to the defense's attack on Cottone's credibility.

At another point in his closing argument, the prosecutor stated that he does not apologize for cross-examining defendant with "all of the force and vengeance" that he could, because defendant knows the truth and he, the prosecutor, was trying to "elicit things from . . . defendant that defense attorney did not bring out on his direct, and that, as I will show you later, are clearly a manipulation of the facts to fashion a defense." Later in his summation, the prosecutor alluded to the defendants in general as a "pack of wolves" who "go after helpless victims." He explained the circumstances confronting the victim, specifically his drunkenness, the night, and number of perpetrators, concluding, "[a]s you would expect wolves to get their prey." It is noteworthy that the prosecutor's statement was not the first to reference a pack of wolves, indeed, during the defense summation, counsel used the same analogy to describe the way the prosecutor cross-examined defendant.

A prosecutor has considerable leeway in presenting a summation, State v. Chew, 150 N.J. 30, 84 (1997), however, he may not exceed the parameters of "permissibly forceful advocacy" established by decisional law. State v. Marshall, 123 N.J. 1, 161 (1991); see also Perry, supra, 65 N.J. at 47 (1974); Mayberry, supra, 52 N.J. at 437 (1968). It is improper for a prosecutor during summation to demean the role of defense counsel or cast unjust aspersions upon a lawyer's motives. State v. Thornton, 38 N.J. 380, 397, (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963); State v. Lockett, 249 N.J. Super. 428, 434 (App. Div.), certif. denied, 127 N.J. 553 (1991; State v. Pindale, 249 N.J. Super. 266, 286 (App. Div. 1991); State v. Sherman, 230 N.J. Super. 10, 16 (App. Div. 1988).

The State concedes, and we agree, that the prosecutor's comment that defense counsel was manipulating facts to create a defense, crossed the line of propriety. The references to a pack of wolves, although better off not said, were directed at actions of the group, not defendant individually. In our view, in the context of the trial, the prosecutor's comments, although inappropriate, were not so egregious as to deprive defendant of a fair trial thus warranting reversal. R. 2:10-2.

Defendant also challenges the following remarks made by the prosecutor:

Mr. Paukstis, 42 years old immigrant at the time from Lithuania, comes over here, he's a mason, hard working, very proud father. Kids in Europe, kids here. Married. Goes out, has a wonderful [n]ight with his wife, a birthday party, drinking, having fun.

Little did he know as he drank his drinks and ate his food . . . it's going to be three weeks before [he] put[s] food down that thro[at] again, because someone is going to put a life support device, a ventilator. Someone is going to stab you three, four times and blood coming out of your kidneys and your rearend. You're not going to eat, you're not going to be able to talk to your wife, you're going to have a lot of problems. And you think about that. Of course not. He could have never anticipated what was waiting for him.

Defendant attacks these statements as irrelevant and an attempt on the part of the State to unfairly elicit sympathy for the victim. Again, we disagree. Prosecutors are afforded considerable leeway in summation as long as their comments are reasonably restricted to the scope of the evidence presented. Frost, supra, 158 N.J. at 82. A prosecutor "may not make inaccurate factual or legal assertions during summation" but must confine closing remarks "to evidence revealed during trial, and reasonable inferences to be drawn from the evidence." State v. Rodriguez, 365 N.J. Super. 38, 48 (App. Div. 2003); accord State v. Smith, 167 N.J. 158, 178 (2001). Here, the prosecutor's comments were factually based and relevant to the victim's injuries and degree of suffering.

Defendant points to a somewhat brief but heated discussion between counsel and the judge held outside the hearing of the jury, concerning the judge's intended instructions to the jury. The prosecutor exclaimed to the judge "don't yell at me." The judge responded, admonishing the prosecutor for his "arrogance" and "impudence," stating he was "tired" of the prosecutor "arguing" with him, and being "rude" to defense counsel. Defendant essentially argues that this colloquy is indicative of prejudicial and cumulative error requiring reversal. We disagree.

The retort from the judge came after a lengthy trial, in response to a specific accusation by the prosecutor, and just prior to the last phase of the case. In our view, the judge's reaction came out of a fleeting act of frustration, which was neither seen nor heard by the jury. It was not, as contended by defendant, intended to be a critique on the prosecutor's performance throughout the trial. While we do not condone some of the prosecutor's tactics, we are satisfied from our review of the entire record that the context in which the inappropriate comments were made did not substantially prejudice defendant's fundamental right to have the jury fairly evaluate the merits of his defense.

Finally, defendant argues that his sentence was excessive and that the trial judge abused his discretion in determining the aggravating and mitigating factors and imposing a sentence one year in excess of the minimum five-year term. We have considered defendant's contention and supporting argument and are satisfied that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

 

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A-3421-04T4

June 23, 2006