STATE OF NEW JERSEY v. DAVID ROSADO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5742-03T45742-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID ROSADO,

Defendant-Appellant.

__________________________________

 

Submitted May 1, 2006 - Decided May 24, 2006

Before Judges Lintner and Holston, Jr.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

03-02-0724.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Joan E. Love, Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant, David Rosado, was found guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count One) and the lesser-included offense of second-degree robbery, N.J.S.A. 2C:15-1 (Count Two). He was acquitted of fourth-degree unlawful possession of a weapon (baseball bat), N.J.S.A. 2C:39-5d (Count Three) and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four). The Count One conviction was merged with the Count Two conviction and a six-year sentence was imposed subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals and we affirm.

On October 21, 2002, Juan Rivas left his home on Verona Avenue in Newark to go to work at approximately 5:50 a.m. As he walked to the parking lot where his car was located, Rivas was approached by two males, one black, the other Hispanic. Rivas recognized the Hispanic male as defendant. They demanded money. After responding that he had no money, the two began punching Rivas. Defendant punched Rivas in the face. As Rivas attempted to run, two other males exited a red vehicle, one of whom had a baseball bat, with which Rivas was struck a number of times about the head and arms. Rivas was thrown to the ground where he was kicked and dragged by the four men. His wallet, containing $190, his work permit, driver's license, and automobile registration, was taken. Rivas returned home. His wife and his landlord, Ivan Burgos, notified the police.

Newark Police Officer Lee McNeil arrived at Rivas's home. He observed that Rivas was bleeding from the head and had bruises on his face. McNeil called the Emergency Medical Squad. Rivas was taken to University Hospital where he was treated, receiving five stitches and twelve staples. Detective Manual Vendrell investigated the scene of the crime where he found a fresh trail of blood. Vendrell interviewed Rivas at the hospital. Rivas described defendant and the clothes he was wearing. Although Rivas did not know defendant by name, he had seen him in the neighborhood.

After Rivas returned from the hospital, he and Burgos looked around the area in an attempt to get information on the person Rivas identified as living in the area. They learned that defendant lived about three to four blocks away on the corner of Woodside Avenue and Verona. They provided Detective William Maldonado with the information. Later in the afternoon on the day of the robbery, Maldonado, Burgos, and Rivas canvassed the neighborhood in Maldonado's car. They went to the address on Woodside Avenue where Maldonado spoke with defendant's mother who provided Maldonado with defendant's name and date of birth. They continued to drive around the area. They came upon a woman, later identified as Nicole Dukakis, who Rivas indicated he had seen defendant with in the neighborhood. Dukakis was interviewed in Maldonado's car and acknowledged that defendant was an acquaintance. Maldonado then went to the home of another of defendant's relatives to ascertain whether she knew defendant's location. He learned where defendant went to church. Maldonado then spoke with defendant's priest, Father Tooman, who did not know defendant's whereabouts. Maldonado returned to headquarters where he used his computer to obtain a photograph of defendant, which was positively identified by Rivas, who then signed the photograph. Maldonado also showed Rivas photograph books in an effort to identify the other perpetrators. Rivas was unable to identify any other individual. Defendant was arrested the next day at his home on Woodside Avenue.

At the Wade hearing held during the trial, Rivas testified that after providing Maldonado with the information, they rode around the neighborhood. Rivas testified that he had seen defendant in the neighborhood "[m]aybe ten, fifteen times before he robbed me." He stated that he spoke to defendant twice, once when defendant asked him for gas money for his car and another time when defendant asked him for quarters. The time defendant asked Rivas for gas money, Rivas replied that he had no money. The time he was asked for quarters, Rivas gave defendant quarters. After speaking with the women Rivas believed were defendant's wife and defendant's mother, Maldonado took Rivas to headquarters where Rivas gave Maldonado a statement. Rivas also viewed photograph albums with hundreds of pictures, which he looked through in an attempt to identify defendant and the black male who first attacked him. He was unable to pick them out. Maldonado then showed him a picture of defendant whom Rivas identified. He also identified defendant in court.

Defendant called Father Tooman as a witness. Tooman told Maldonado that he had seen defendant that morning at defendant's home, at around 9:30 a.m., where he picked defendant up after being paged by defendant at approximately 9:00 a.m. Defendant's mother also testified for defendant who confirmed that Maldonado came to her house between 7 p.m. and 8 p.m. on the day of the offense. Defendant elected not to testify.

On appeal defendant raises the following points:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO DECLARE A MISTRIAL AFTER THE VICTIM TESTIFIED THAT THE DEFENDANT'S WIFE HAD APOLOGIZED TO HIM.

POINT II

THE PROSECUTOR'S EXPRESS RELIANCE ON THE DEFENDANT'S STATUS AS A PANHANDLER AND DEFENDANT'S NEED FOR MONEY TO PROVE THAT HE PERPETRATED A ROBBERY VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below.)

POINT III

THE STATE'S RELIANCE ON HEARSAY EVIDENCE FROM A WITNESS WITH NO FIRST-HAND KNOWLEDGE OF THE FACTS VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below.)

POINT IV

THE TRIAL COURT DEPRIVED THE DEFENDANT OF HIS DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF THEFT. (NOT RAISED BELOW.)

POINT V

THE IDENTIFICATION EVIDENCE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE IDENTIFICATION EVIDENCE RESULTED FROM A SUGGESTIVE PROCEDURE AND ITS ADMISSION VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION.

POINT VI

THE TRIAL COURT ERRONEOUSLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

We reject defendant's contentions, which we address seriatim.

During Rivas's direct examination, which took place on videotape, he was asked about Maldonado's interview of the woman Rivas believed was defendant's wife. Rivas replied, "when she saw me . . . she told me that she was very sorry." Defense counsel objected and requested a mistrial, asserting that the answer was hearsay and tantamount to saying, "I am sorry that my husband robbed you." The judge denied the request for a mistrial and gave the following curative instruction:

Ladies and gentlemen, in the last answer that the witness gave you he indicated to you something that someone else said. That answer is stricken. The objection that the defense raised is sustained. To the degree to which you remember the question and the answer, you are to disregard it.

Sometimes in some circumstances a witness can tell you what someone else said. Sometimes that has to come with a limiting instruction, that is, I have to tell you in what way you could consider it and in what ways you can't, but as a general rule it's not admissible because it's hearsay and hearsay is something that someone else said.

If someone else has got something to say and it's being offered for the truth of what it said, it's got to be presented to you by the person who said it. That might be oversimplifying it a little bit, but you can't . . . take into consideration what one witness says with regard to what someone else may have said or get any meaning from it or consider it in any way.

So, once again, that question and answer is stricken and you are, to the degree you remember it, to disregard it.

Later, during jury deliberations, the jury requested both Rivas's and Vendrell's testimony. During the replay of Rivas's testimony, the portion previously struck was played. Defendant renewed his motion for a mistrial, indicating that, had the testimony been read back by a court stenographer, the stricken portion would have been deleted. The judge denied defendant's request for a mistrial and again instructed the jury, re-emphasizing his prior instruction and telling the jury repeatedly to disregard the previously stricken testimony that it heard.

Defendant asserts the prejudice was sufficiently severe the first time and reinforced the second time and that the only fair recourse is to reverse the judgment and try the matter anew. "The standard for granting a mistrial is the same as that for granting a new trial motion, namely whether or not the error is such that manifest injustice would result from continuance of the trial and submission of the case to the jury." Pressler, Current N.J. Court Rules, comment 5.1 on R. 3:20-1. "The consideration of the mistrial motion, however, has one additional element, namely the court's determination of whether or not the prejudice resulting from the error is of a nature which can be effectively cured by a cautionary instruction or other curative steps." Ibid. Here, the trial judge took the appropriate steps by giving appropriate and effective curative instructions. In our view, the judge's instructions were adequate to ameliorate any significant prejudice. State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). There is no reason to believe that the jury was unwilling or unable to follow the curative instruction as given. State v. Manley, 54 N.J. 259, 270 (1969). We are satisfied that there was no manifest injustice or undue prejudice to defendant.

Next, defendant challenges, for the first time on appeal, the following emphasized remarks made by the prosecutor in her summation:

But what happened here? Mr. Rivas recognizes the face of David Rosado. And how does he recognize the face of David Rosado? He recognizes him because, in the past, Mr. Rosado has asked him for money in the area where he lives.

And we all know, ladies and gentlemen, and I submit to you, this is credible. We know who comes in our neighborhoods. Mr. Rivas knew who was in his neighborhood. Mr. Burgos, who testified, knew who was in the neighborhood.

And who commits crimes of opportunity? People who need money, people who want money, people who want things that get them money. And Mr. Rivas, has given -- he testified, he's given the money, and he told Mr. Burgos that, he told Police Officer Vendrell that, he told Detective Hernandez that, in front of Detective Sergeant Ferreira, he told Detective Maldonado that.

I submit to you, ladies and gentleman, when somebody asks for money, that's personal. You know who you give money to, and you know who you don't give money to. So when someone asks you for money, and you see them again, you're going to remember their face. (emphasis added).

Defendant asserts that the State elicited facts that defendant was a panhandler to establish poverty as a motive for the robbery. Throughout Rivas's testimony, reference was made to his prior knowledge of defendant in the neighborhood, including his direct contact with defendant when defendant asked him for money. We view these circumstances as distinguishable from State v. Mathis, 47 N.J. 455, 472 (1966), wherein the Court stated, "there must be something more than poverty to tie a defendant into a criminal milieu." To be sure, evidence of impecuniosity of a defendant to establish a motive or willingness to commit a crime is improper. Ibid.

Here, the defense argued that Rivas's identification of defendant as the perpetrator and the procedural use of a single photograph by Maldonado to establish defendant's identity were neither credible nor reliable. The evidence of defendant's panhandling, which was not objected to by the defense, was relevant to Rivas's ability to identify defendant with whom he had previously had face-to-face dealings as a result of defendant's request for money. The evidence of defendant's panhandling, as well as the prosecutor's comments, bore on the credibility and reliability of Rivas's identification, a hotly contested issue in the case. Simply put, this evidence now challenged for the first time was germane to the case. The evidential linkage was not between poverty and the robbery. Instead, Rivas's testimony was elicited to counter the defense that Rivas's brief encounter with defendant at the time of the robbery prevented him from being able to identify defendant as one of the perpetrators. Considering the merit of defendant's argument, we see no plain error requiring us to intervene. R. 2:10-2.

Defendant also apparently challenges the prosecutor's remarks as improper. In determining whether a defendant's right to a fair trial was denied, we must consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Frost, 158 N.J. 76, 83 (1999). Generally, if defense counsel does not object to the prosecutor's remarks, the remarks will not be deemed prejudicial. Ibid. The failure to object may indicate that defense counsel believed the remarks were not so prejudicial at the time and also deprives the judge of an opportunity to take appropriate action. Id. at 84.

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). Generally, a prosecutor is permitted to respond to an argument raised by the defense so long as it does not constitute a foray beyond the evidence adduced at trial. State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996) (citing State v. Wilson, 128 N.J. 233, 241-42 (1992)). Although inappropriate, we do not believe that the prosecutor's isolated reference to people who need money as those who commit crimes was sufficiently egregious to deprive defendant of a fair trial. R. 2:10-2.

Defendant next asserts, again for the first time on appeal, that Maldonado's testimony that he responded to a robbery involving four individuals, three of whom were identified by Rivas as Hispanic and one of whom used a baseball bat on the victim who received injuries to the head and was relieved of his wallet, represented impermissible hearsay that amounted to plain error. Maldonado prefaced his testimony by indicating that the information was provided by the police report and preliminary investigation. The now-challenged testimony was not asserted to be based upon either personal or firsthand knowledge. More importantly, defendant conceded that Rivas was indeed robbed and beaten. Under these circumstances, we perceive no possibility of an unjust result emerging from Maldonado's belatedly challenged testimony.

Defendant next contends that the judge erred in failing to charge the jury on the lesser-included offense of theft, notwithstanding his failure to request such an instruction. As defined by N.J.S.A. 2C:1-8d, an offense is "included" if:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

[N.J.S.A. 2C:1-8d(1)-(3).]

Theft is a lesser-included offense of robbery, and it is appropriate to charge theft if "there is a question whether the defendant's act of 'inflict[ing] bodily injury,' 'us[ing] force upon another' or 'threat[ening] another with [or] purposefully put[ting] him in fear of bodily injury' occurred 'in the course of committing a theft.'" State v. Harris, 357 N.J. Super. 532, 539 (App. Div. 2003) (alterations in original) (quoting State v. Jordan, 240 N.J. Super. 115, 119-21 (App. Div.), certif. denied, 122 N.J. 328 (1990)).

"An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). A trial judge need not "'scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty.'" State v. Brent, 137 N.J. 107, 118 (1994) (quoting State v. Sloane, 111 N.J. 293, 302 (1988)); see also Choice, supra, 98 N.J. at 299 (stating that the trial court does not "have the obligation on its own meticulously to sift through the entire record" to find appropriate charges). In Brent, supra, 137 N.J. 113-14, the Court commented on N.J.S.A. 2C:1-8e:

The statute has been characterized and construed as requiring not only a rational basis in the evidence for a jury to convict the defendant of the included offense but requiring also a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense.

When a defendant requests a charge on a lesser offense, the trial judge must focus on the facts in evidence "'to ensure that there is a rational basis for a jury to reject the greater charge and convict of the lesser'" charge. Id. at 116 (quoting Cannel, New Jersey Criminal Code Annotated, comment 13 on N.J.S.A. 2C:1-8 (1993)). Moreover, where the evidence reasonably supports defendant's request for a jury charge on a lesser-included offense, a trial court's failure to give it is reversible error.

Defendant argues that the State alleged that Rivas was the victim of an armed robbery. He maintains that the jury rejected the charge of first-degree armed robbery in favor of second-degree robbery without a weapon. Consequently, defendant argues that the jury should have been given the same opportunity to reject the victim's testimony concerning defendant's use of force by charging the jury on the lesser offense of theft. Contrary to defendant's contention, instruction on the lesser-included offense of second-degree robbery was required because the facts established that someone other than defendant used the bat. By contrast, the only testimony concerning defendant's actions during the robbery came from the victim who testified that defendant used force by punching him in the face and kicking him. The facts did not provide a rational basis to charge theft, much less establish a clear indication that such an instruction was warranted. Accordingly, the judge's failure to instruct on the offense of theft was not error.

Defendant next argues that the photograph of defendant should have been suppressed following the Wade hearing because it was unnecessarily suggestive so as to result in a substantial likelihood of misidentification. When balancing "the State's need to use eyewitness identification against the defendant's need to protect himself against potentially unreliable eyewitness testimony," a two-prong test has been developed "to determine the admissibility into evidence of an eyewitness's identification." State v. Madison, 109 N.J. 223, 232 (1988) (citing Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969); Simmons v. United States, 390 U.S 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Explaining this two-part test, our Supreme Court in Madison stated:

[A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence. "Reliability is the linchpin in determining the admissibility of identification testimony. . . ." The reliability determination is to be made from the totality of the circumstances adduced in the particular case.

[Madison, supra, 109 N.J. at 232-33; (citations omitted).]

Here, the trial judge permitted the out-of-court identification, finding that although the use of a single picture was impermissibly suggestive, the identification was nevertheless reliable because it occurred within a reasonable time after the offense and was based upon Rivas's knowledge of defendant, having seen him on many occasions prior to the offense. We agree. The photograph was obtained based upon Rivas's familiarity with defendant and after ascertaining defendant's name at his residence and from an acquaintance seen with defendant in the neighborhood. Under these circumstances, there was not a very substantial likelihood of irreparable misidentification that would render the out-of-court identification unreliable.

Finally, defendant argues that his sentence was excessive and that the trial judge abused his discretion in determining the aggravating and mitigating factors. 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. Ghertler, 114 N.J. 383, 393 (1989); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

 

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

Although defendant does not expressly raise prosecutorial misconduct, he implies it, alluding to the emphasized portion of the prosecutor's summation.

(continued)

(continued)

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A-5742-03T4

May 24, 2006