STATE OF NEW JERSEY v. RUBEN ALMEIDA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3825-03T43825-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RUBEN ALMEIDA,

Defendant-Appellant.

______________________________________________________________

 

Submitted January 11, 2006 - Decided February 7, 2006

Before Judges Wecker and Graves.

On appeal from the Superior Court of New Jersey,

Law Division, Atlantic County, Ind. No. 01-04-0746A.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Steven M. Gilson, Designated Counsel,

of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor,

attorney for respondent (Yasmeen Shihabi,

Assistant County Prosecutor, of counsel and on

the brief).

PER CURIAM

A four-count indictment charged defendant Ruben Almeida with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count two); third-degree possession of a knife with the purpose to use it unlawfully, N.J.S.A. 2C:39-4(d) (count three); and fourth-degree possession of a knife under circumstances not manifestly appropriate for lawful uses, N.J.S.A. 2C:39-5(d) (count four). On December 11, 2003, the jury acquitted defendant of the first three counts but convicted him on count four.

At the close of the State's case, defendant's motion for entry of a judgment of acquittal, as to all four counts, was denied. Defendant's sole argument on appeal is that his motion for a judgment of acquittal as to the unlawful possession of a weapon charge should have been granted. According to defendant, "even when one applies the Reyes test, a 'reasonable jury' could not find beyond a reasonable doubt that defendant did not use the knife in self-defense." We disagree and affirm.

In her opening statement, the assistant prosecutor told the jury:

[T]he judge said that you should judge the credibility of all the witnesses. Well, you don't have to rely just on what they tell you. You're going to have a [videotape]. There was a [videotape] running in the bar that night that catches it. It's fuzzy at times. But we will slow it down and point out different things to you. The victim [David Rodriquez] will point out where he is in the picture, where the defendant is, and what each of them are doing. And in this video you will see the defendant chasing the victim as the victim ran away. You will see shining in the light a silver knife in the defendant's hand. You'll see a video where the defendant is on top of the victim slashing him. You'll see another picture in the video of the defendant [being] restrained by his friend. You'll see a picture of the victim running out of the kitchen when he escapes. All this is on [videotape]. Videos don't lie. So what are you going to have? You're going to have the witnesses tell you what happened, photographs to tell you what happened, and on [videotape] we'll show you exactly what happened. And you'll have no choice in the matter than to find the defendant guilty because there'll be so much evidence, this video alone, that there'll be no doubt in your mind.

In response, defendant's attorney told the jury that Rodriquez, the alleged victim, "was the aggressor, who provoked, who threatened, who started this fight with [defendant]."

After the jury had rendered its verdict and it had been discharged, the trial judge had this to say:

This verdict is outrageous. I am reminded of O.J. Simpson. I don't think I've seen somebody more guilty in this courtroom after a trial than Mr. Almeida. I must, however, respect the jury's verdict. They have convicted him of a fourth degree offense. He has no prior record, the presumption of non-incarceration is strong. Notwithstanding my personal view of what he did here, and I'm outraged, this is not a just result, let me tell you this, Mr. Almeida: This was not a just result. In my view you're guilty, you're guilty of almost murdering somebody. [You're] lucky that man lived.

At sentencing on January 10, 2003, defendant's attorney acknowledged that the jury verdict "was fair in light of . . . our defense," and he argued for "a straight probation sentence" without a period of incarceration as a condition of probation. The trial court, however, sentenced defendant to a five-year term of probation, and defendant was required to serve 364 days in the county jail as a condition of probation. Mandatory penalties and assessments were also imposed. The trial court's comments at sentencing included the following:

In this case I saw with my own two eyes [videotape] depicting Mr. Almeida as a very aggressive pursuer of the victim towards him, knife raised, repeated thrustings of the knife while the victim is backing up and doing only things that could reasonably be said to protect himself, not well enough, unfortunately. Now he was acquitted of those offenses, contrary to the facts in my view, contrary to the law, contrary to common sense.

. . . .

[I]t is appropriate for me to consider . . . the nature of the weapon possessed, the place where it was possessed, in a bar, and while the defendant made a conscious choice to consume alcoholic beverages until he was quite intoxicated. . . . So he's now in a bar with a knife, he's intoxicated, and things occur which, but for the possession of this knife this whole thing may not have occurred because he wouldn't have had . . . it available to use in the unlawful fashion the jury found that he did use it in. I don't accept, as I think the jury did not accept, his explanation for having the knife. . . . [A] lot of what Mr. Almeida testified to when he testified in his defense was certainly believable in terms of his subjective belief. He was credible. But on this issue of why he had the knife, to cut some wires, he was wholly, in my view, incredible and his account of why he had the knife was implausible. I think he clearly had the knife in anticipation of having to use it in the place where he was if things occurred as they did.

In deciding a motion for acquittal made at the close of the State's evidence, the court must determine whether the State's evidence, viewed in its entirety and giving the State the benefit of all favorable inferences, could permit a jury to find the defendant guilty beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). "In assessing the sufficiency of the evidence, the relevant inquiry is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Martin, 119 N.J. 2, 8 (1990) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). On a motion for a judgment of acquittal, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). The same standards are to be applied by a reviewing appellate tribunal. State v. Kittrell, 145 N.J. 112, 130 (1996).

We are satisfied, based on our review of the record, that the trial court did not err in denying defendant's motion for a judgment of acquittal. The State submitted sufficient proofs to submit count four of the indictment to the jury, and the evidence was sufficient for a reasonable jury to find, beyond a reasonable doubt, that defendant possessed a knife under circumstances not appropriate for lawful use. See State v. Kelly, 118 N.J. 370, 386 (1990) ("Although self-defense involves a lawful use of a weapon, it does not justify the unlawful possession of the weapon under section 5d except when a person uses a weapon after arming himself or herself spontaneously to repel an immediate danger . . . .").

 
Affirmed.

(continued)

(continued)

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A-3825-03T4

February 7, 2006