STATE OF NEW JERSEY v. JOSEPH CIAFULLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6173-04T46173-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH CIAFULLO,

Defendant-Appellant.

___________________________________________________

 

Submitted September 12, 2006 - Decided September 26, 2006

Before Judges Weissbard and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

04-06-0959.

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel P. McNerney, Designated Counsel

and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Nancy A. Hulett, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joseph Ciafullo was charged with carjacking, N.J.S.A. 2C:15-2 (count one), aggravated assault-second degree, N.J.S.A. 2C:12-1b(1) (count two), and theft by unlawful taking, N.J.S.A. 2C:20-3 (count three). After a four-day jury trial, defendant was acquitted of carjacking, but convicted of theft and the lesser offense of third-degree aggravated assault. On April 29, 2005, defendant was sentenced to consecutive four-year prison terms on counts two and three. Appropriate penalties and assessments were also imposed.

On appeal, defendant argues that the trial judge erred in failing to instruct the jury on the lesser offense of "fighting," N.J.S.A. 2C:12-1a, under count two, and the lesser offense of "joyriding," N.J.S.A. 2C:20-10a, under count three. He also attacks the consecutive sentencing on his two convictions.

We see no need to recount the facts at any great length. On February 21, 2004, after a party, defendant drove Charles Stewart home in Stewart's car. Defendant inflicted a severe beating on Stewart and took his car. Stewart managed to reach a nearby apartment where he awakened the occupant by pounding on the door. The police arrived and Stewart, who was disoriented and complaining of severe head pain, told them he had been beaten and his car had been stolen, although he could not recall the details. At the hospital, Stewart was found to have a skull fracture in one location and swelling of the scalp in another place, signifying infliction of more than one blow. After being released from the emergency room on February 22, 2004, Stewart returned a few days later with complaints of severe headaches and vomiting. He was then hospitalized for three days.

Between hospital visits, Stewart received a call from defendant who admitted taking the car but claimed he was only "playing" with defendant. He promised to return the car that evening but did not. Instead, defendant drove Stewart's car, showed it to his sister, and told his stepfather that he had a new job and had just bought the car. When arrested, defendant admitted that he had "punched" Stewart. It is in this context that we examine defendant's claim that he was prejudiced by the trial judge's failure to instruct the jury on certain lesser included offenses.

At the outset, we note that defendant failed to request either of the lesser offense instructions at trial, requiring that we review his claim for plain error. R. 2:10-2. It is settled that a defendant is entitled to an instruction on a lesser-included offense where the evidence presents a "rational basis" upon which the jury could convict defendant of that offense, as well as, a rational basis to acquit of the charged offense. N.J.S.A. 2C:1-8e; State v. Brent, 137 N.J. 107, 113-14 (1994). Generally, "failure to instruct the jury at the defendant's request on a lesser charge for which the evidence provides a rational basis warrants reversal of the defendant's conviction." Id. at 118. The trial court "has an independent obligation" to instruct on lesser-included offenses where the evidence supports such an instruction. State v. Jenkins, 178 N.J. 347, 361 (2004). As a result, reversal may be warranted even in the absence of a request or objection. Id. at 360, 364; State v. Grunow, 102 N.J. 133, 148 (1986).

With respect to the theft charge, defendant argues that he should have received an instruction on the disorderly persons offense of "joyriding" under N.J.S.A. 2C:20-10a. However, as the State points out, that provision, as amended in 1993, only applies to a "means of conveyance, other than a motor

vehicle. . . ." Thus, it is clearly inapplicable. Both of the cases relied on by defendant, State v. Dandy, 243 N.J. Super. 62 (App. Div. 1990) and State v. Alexander, 215 N.J. Super. 523 (App. Div. 1987), were decided prior to the statute's 1993 amendment. Subsection b of that same statute, N.J.S.A. 2C:20-10b, is applicable to motor vehicles and was charged in this case but rejected by the jury.

With respect to the contention that the jury should have been instructed on the petty disorderly persons offense of fighting "by mutual consent," N.J.S.A. 2C:12-1a, there was simply no evidence supporting such a theory. "[S]heer speculation does not constitute a rational basis." Brent, supra, 137 N.J. at 118; see also State v. Josephs, 174 N.J. 44, 103 (2002).

In any event, the jury was charged with the lesser offenses of third-degree aggravated assault and simple assault, N.J.S.A. 2C:12-1a(1), and convicted defendant of the third-degree lesser offense but rejected the option of simple assault. Since mutual consent fighting is a sub-category of simple assault, defendant could not have been prejudiced by the omission, even if the charge were warranted. Had the jury reached simple assault, defendant's argument would have more merit. As a result, we reject defendant's lesser-included offense arguments.

Defendant argues that in imposing consecutive sentences the judge failed to comply with the guidelines established by State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). In sentencing defendant, the judge provided the following as his justification for consecutive sentencing:

And the basis, on which it was argued by the defense, that the defendant should not be convicted of the carjacking, and, apparently, it was so found by the jury, was that these were two separate offenses. That the determination to take the defendant's automobile was an afterthought. That after the altercation, resulting in the aggravated assault on the victim, that the defendant then, independently, took the victim's automobile. And I accept that as two separate offenses. And, therefore, the defendant's sentence, on count three, is consecutive to count two.

The judge's reasoning appears to be that since defendant argued that he was not guilty of carjacking because the assault was not "in the course of committing an unlawful taking of a motor vehicle," N.J.S.A. 2C:15-2a, his acquittal on carjacking meant that the jury had concluded that the theft and the assault were separate crimes, the theft being "an afterthought," following the assault. Of course, what the jury might have thought, or why it reached the result it did, can only amount to speculation. Defendant's attorney was entitled, indeed obligated, to make the best argument for acquittal that he could. His argument and the jury's verdict do not mean that the judge had to reach that same conclusion nor do they satisfy the judge's obligation to analyze the Yarbough factors. Here, a number of the factors militated against consecutive sentences; the crimes were not "numerous," only one victim was involved and the crimes were committed at the same time and place. See Yarbough, supra, 100 N.J. at 644.

As a result, we remand so that the judge may reconsider his decision to impose consecutive terms in light of Yarbough. The judge should clearly state his analysis in that regard so that any subsequent review will have the benefit of his thinking. We emphasize that consecutive sentencing is a serious matter that requires a "principled basis." State v. Louis, 117 N.J 250, 256 (1989). Yarbough was intended to fashion objective criteria in order to achieve the Code's goal of "a predictable degree of uniformity in sentencing." Id. at 258. We cannot permit our condemnation of defendant's acts to blind us to that goal.

Convictions affirmed; remanded for a new sentencing. We do not retain jurisdiction.

 

 

We do note an anomaly in the statute. While the statute is applicable to a "means of conveyance" other than a motor vehicle, "means of conveyance" is defined to include motor vehicles. It seems clear that when the statute was amended in 1993, the definitional sentence was not changed as it should have been. To avoid future confusion, it is recommended that the Legislature address this apparent drafting error.

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A-6173-04T4

September 26, 2006