STATE OF NEW JERSEY v. ANTHONY VEGA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6468-04T46468-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY VEGA,

Defendant-Appellant.

________________________________

 

Submitted: December 5, 2006 - Decided December 27, 2006

Before Judges Coburn and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 03-06-1176.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Lauren S. Kirk, Assistant County Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Tried to a jury, defendant Anthony Vega was convicted of the lesser-included offense of third-degree aggravated assault causing significant bodily injury to George Alvarez, N.J.S.A. 2C:12-1b(7) (count one); third-degree aggravated assault with a deadly weapon causing bodily injury to George Alvarez, N.J.S.A. 2C:12-1b(2) (count two); the lesser-included offense of third-degree aggravated assault causing significant bodily injury to Juan Rodriguez, N.J.S.A. 2C:12-1b(7) (count three); conspiracy with Damian Burgos to commit second-degree aggravated assault on both victims, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b(1) (count seven); third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count eight); and fourth-degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5d (count nine). He was acquitted of third-degree aggravated assault with a deadly weapon causing bodily injury to Rodriguez (count four), and two counts of aggravated assault on Pedro Rivera (counts five and six) were dismissed because the victim failed to testify.

The trial judge granted the State's motion to sentence defendant to a discretionary extended term as a persistent offender under N.J.S.A. 2C:44-3 on count one and imposed a ten-year term with a five-year period of parole ineligibility. He imposed a consecutive term of five years with two-and-one-half-years of parole ineligibility on count three for defendant's assault on Rodriguez, and concurrent terms of nine years with an 85% period of parole ineligibility under NERA on count seven and eighteen months on count nine. He merged count two with count one and count eight with counts one and three. The aggregate custodial sentence was fifteen years with a seven-and-one-half-year period of parole ineligibility. The appropriate mandatory monetary assessments were also imposed.

The convictions arose from a fight occurring after Alvarez, Rodriguez and Rivera left Delareto's nightclub in Galloway Township around 2:30 a.m. on April 27, 2003. Defendant grabbed Rodriguez, threw him onto a car and began to strike him. Alvarez and Rivera became involved in the fight. Alvarez observed defendant throwing punches but did not see that defendant had a knife in his hand. Defendant began fighting with Alvarez again as the three men began walking back towards the club. Alvarez then saw defendant motion to Burgos "to give him something," which he did, and defendant advanced towards Alvarez, wielding the knife. Defendant continued lunging at the men as they attempted to enter the club. Defendant did not stop until he heard sirens, at which point he got into his car and left.

Alvarez had stab wounds to his upper right chest, with flesh hanging out, and Rodriguez had stab wounds to his upper left chest. The victims' wounds were sutured at the emergency room and they were released.

One of the club employees gave a description of defendant to the investigating officer and informed him defendant was armed with a knife about five to six inches long. Defendant and Burgos were apprehended not far from the club, though no weapons were found on them. Defendant argued there was no proof he ever used a knife and he acted out of anything other than self-defense.

Defendant was charged under the indictment on counts one and three with second-degree aggravated assault, i.e., attempting to cause substantial bodily injury, but was also charged with the lesser-included offense of attempting to cause "significant" bodily injury, for which defendant was convicted. The judge did not charge the lesser-included offense of third-degree conspiracy to commit aggravated assault. Following his conviction, defendant made a motion for a new trial, alleging juror misconduct because juror number eight shared the same employer with defendant's girlfriend and his father. Defendant also argued it was inconsistent for the jury to find him guilty of conspiracy to commit "serious" bodily injury but only causing "significant" bodily injury. The trial judge denied the motion.

On appeal, defendant makes the following arguments through counsel:

POINT I

THE COURT'S FAILURE TO GRANT DEFENSE COUNSEL'S REQUEST FOR A NEW TRIAL WAS AN ABUSE OF DISCRETION WHERE IT FAILED TO CONDUCT A POST CONVICTION INTERVIEW OF JUROR EIGHT.

POINT II

THE COURT ERRED IN FAILING TO CHARGE THE JURY WITH A LESSER-INCLUDED OFFENSE. (Not Raised Below).

POINT III

DEFENDANT'S CONVICTION MUST BE SET ASIDE AS THE JURY VERDICT WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV

THE STATE FAILED TO PROVE AGGRAVATED ASSAULT BEYOND A REASONABLE DOUBT AS TO RODRIGUEZ, CONSEQUENTLY THE CONVICTIONS ON COUNTS THREE AND FOUR MUST BE VACATED.

POINT V

NO OTHER CONCLUSIONS CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

POINT VI

THE COURT VIOLATED DEFENDANT'S DUE PROCESS RIGHTS IN IMPOSING AN EXCESSIVE SENTENCE.

In a pro se supplemental brief, defendant makes the following arguments:

POINT I

THE TRIAL COURT VINDICTIVELY IMPOSED A HARSHER SENTENCE UPON APPELLANT, WHICH DIFFERED CONSIDERABLY FROM THAT IMPOSED UPON CODEFENDANT, BY RELYING ON THE FACT THAT APPELLANT ELECTED TO STAND TRIAL IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS.

A. THE TRIAL COURT'S REPEATED RELIANCE ON APPELLANT'S EXERCISE OF HIS CONSTITUTIONAL RIGHT TO TRIAL BY JURY SHOWS A RETALIATORY MOTIVATION.

B. THE TRIAL JUDGE FAILED TO EXPLAIN HIS REASONS FOR THE DISPARITY OF SENTENCES IN THIS CASE WHILE EXPRESSLY CONSIDERED THE FACT THAT APPELLANT WENT TO TRIAL.

1. The Court Failed to Explain The Disparity Of Sentences.

2. The Sentencing Judge Expressly Relied Upon Appellant's Exercise Of His Constitutional Right To Trial

As A Reason to justify The Disparity Of Sentences.

POINT II

APPELLANT'S SENTENCE WAS IMPOSED ON THE BASIS OF MATERIALLY UNTRUE ASSUMPTIONS AND/OR MISINFORMATION IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS.

POINT III

THE TRIAL JUDGE'S IMPOSITION OF MAXIMUM AND CONSECUTIVE SENTENCES WAS UNREASONABLE AND SUCH SENTENCES VIOLATED THE SENTENCING GUIDELINES BECAUSE THEY WERE IMPOSED BASED ON THE SAME FACTORS AND THE JUDGE DID NOT CONSIDER ALL OF THE YARBOUGH GUIDELINES RELATING TO THE CRIME.

A. THE TRIAL COURT SHOULD NOT HAVE IMPOSED

MAXIMUM TERMS AND ALSO ORDERED THE

SENTENCES TO RUN CONSECUTIVELY.

B. THE TRIAL COURT IMPOSED CONSECUTIVE

SENTENCES BASED SOLELY ON THE MULTIPLE

VICTIMS FACTOR AND THUS FAILED TO

CONSIDER THE REMAINING YARBOUGH

GUIDELINES.

POINT IV

APPELLANT'S SENTENCE WAS IMPOSED IN VIOLATION OF THE SENTENCING GUIDELINES BECAUSE THE TRIAL JUDGE FAILED TO CONSIDER MITIGATING FACTORS SUPPORTED BY THE RECORD.

A. APPELLANT ACTED UNDER STRONG PROVOCATION.

B. APPELLANT HAS COMPENSATED THE VICTIMS OF HIS CONDUCT.

C. APPELLANT'S CONDUCT WAS THE RESULT OF CIRCUMSTANCES UNLIKELY TO RECOVER.

D. APPELLANT OFFERED SUFFICIENT CREDIBLE EVIDENCE THAT HIS IMPRISONMENT WOULD ENTAIL EXCESSIVE HARDSHIP TO HIS FAMILY.

POINT V

APPELLANT'S TOP RANGE EXTENDED TERM SENTENCE WAS IMPOSED BASED ON JUDICIAL FACT-FINDING NOT SPECIFICALLY RELATED TO PRIOR RECORD, IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS TO TRIAL AND DUE PROCESS OF LAW.

POINT VI

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT CONVICTION FOR CONSPIRACY, AND THE JURY'S GUILTY VERDICT ON THAT COUNT IS INCONSISTENT WITH THE GUILTY FINDING ON THE SUBSTANTIVE OFFENSE OF THIRD DEGREE AGGRAVATED ASSAULT; ALTERNATIVELY, THE CONSPIRACY CONVICTION SHOULD MERGE INTO THE SUBSTANTIVE OFFENSE OF AGGRAVATED ASSAULT.

A. INSUFFICIENCY OF EVIDENCE TO SUPPORT

CONSPIRACY CONVICTION.

B. INCONSISTENT VERDICT.

C. THE CONSPIRACY MERGES INTO THE

SUBSTANTIVE OFFENSE.

We are not persuaded by any of defendant's arguments challenging the conviction, and we affirm the conviction. We remand for resentencing under State v. Pierce, 188 N.J. 155, (2006), and State v. Natale, 184 N.J. 458 (2005) (Natale II).

Motions for a new trial are addressed to the sound discretion of the trial judge, whose determination will not be reversed on appeal absent a clear abuse of discretion and a showing that it has resulted in a miscarriage of justice under the law. R. 2:10-1; see also State v. Levitt, 36 N.J. 266, 272 (1961); State v. Onysko, 226 N.J. Super. 599, 603-04 (App. Div. 1988). We perceive no abuse of discretion by the trial judge in declining to interview juror number eight subsequent to trial based solely on defendant's generalized statement of her employment status, of which defendant was aware from the outset, and where the record is devoid of any evidence of juror misconduct. As the judge noted, defendant knew during jury selection and throughout the entire trial that the juror shared a common employer with defendant's girlfriend and his father. Defendant, however, kept silent and waited to see what the verdict would be and, only after he was convicted, did he bring this fact to anyone's attention.

Defendant's sole claim of potential juror misconduct and basis for a new trial, conveyed by a letter to the judge on the eve of sentencing, was that as a coworker of his father and his eight-year girlfriend Melinda, the juror "is familiar with them." Moreover, defendant claimed the juror had "opportunities to see [him when he] picked Melinda up from work on numerous occasions, meeting her at various locations in the casino." There were no further facts adduced during the colloquy and argument on the motion to suggest possible prejudice. There was no indication the juror hid this information in voir dire as she was not asked if she knew defendant's family but was only questioned as to her knowledge of defendant or any of the witnesses. Defendant's girlfriend and his father were not witnesses at the trial. Moreover, defendant presented no evidence of a relationship between the juror and his girlfriend or father other than that they all worked in "the casino." Nor did defendant claim the juror had ever even spoken to him. In the absence of any information that the juror knew or recognized defendant, the trial judge found he did not have "just cause or any cause whatsoever to bring her into court [and] even to be audacious enough to question her with regard to what [he was] supplied."

"Where there are sufficient allegations that the jury's verdict was discolored by improper influences, the trial judge should investigate the truth of the charges so that he may determine whether a new trial is warranted." State v. Levitt, supra, 36 N.J. at 271. The generalized allegation in this case was insufficient to merit such action. The "good cause" requirement of Rule 1:16-1 to interview a juror subsequent to trial "must be predicated upon the injection into the deliberation of some outside influence or event of proof [of] a juror who was tainted." State v. Jasuilewicz, 205 N.J. Super. 558, 569 (App. Div. l985), certif. denied, l 03 N.J. 467 (1986). More than a "mere possibility" of an improper influence must exist in order to meet the good cause requirement. State v. Young, 181 N.J. Super. 463, 469 (App. Div. l981), certif. denied, 91 N.J. 222 (1982). The bare fact the juror, defendant's girlfriend and his father worked in the same casino did not rise to even this level.

We do not perceive plain error in the judge failing to charge a lesser-included conspiracy offense. Neither inconsistent verdicts nor an unjust result occurred. R. 2:10-2. Nor was the verdict against the weight of the evidence. R. 2:10-1 (a trial court's ruling on a motion to set aside a verdict as against the weight of the evidence will not be disturbed on appeal unless it clearly appears there has been a miscarriage of justice under the law). Defendant was charged, in accordance with the indictment, of conspiring with Burgos to attempt to cause serious bodily injury to either or both Alvarez and Rodriquez (second-degree aggravated assault), and was convicted of that offense. The jury also found defendant, in fact, committed the lesser-included offense of third-degree aggravated assault on both victims. As the judge noted in denying the motion for a new trial, there was sufficient evidence for a rational jury to find, beyond a reasonable doubt, each and every element of a conspiracy to commit second-degree aggravated assault. Burgos was observed handing defendant a knife, which a witness described as five to six inches long, and defendant was identified as approaching the victims, wielding the knife and trying to use it. It was undisputed defendant repeatedly fought with both Alvarez and Rodriquez, and both of them received stab wounds to their chests that required suturing at the emergency room.

As the judge also stated, the jury could have found that defendant and Burgos' overall plan was to "do these guys in or at the very least, to commit serious bodily injury,"

and then once [defendant] got involved in it and these guys began asserting themselves, the victims, the intended victims, and defending themselves, then the best attempt [defendant] could muster, because maybe they were stronger than [defendant and Burgos], maybe they were better fighters than [defendant and Burgos], and even though [defendant and Burgos'] plan was to do [the victims] in, because of their skill in fighting [defendant and Burgos] off, the best attempt [defendant] could make was to commit significant bodily injury, and that's not inconsistent.

The balance of defendant's challenge to his conviction are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

As to defendant's sentence, the trial judge found aggravating factors three, six and nine. We discern no basis to second guess his failure to find mitigating factor ten, i.e. that defendant is likely to respond to probationary treatment, or any other mitigating factor. State v. Roth, 95 N.J. 334, 364-65 (1984). The judge properly sentenced defendant on count one (third-degree aggravated assault on Alvarez) to a discretionary extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a, based on defendant's "atrocious criminal record" of seventeen adult arrests and nine convictions, three of which were for indictable offenses, and a juvenile record that included an eighteen-month incarceration. He then sentenced defendant at the highest part of the extended term range for a third-degree offense (ten years). We are obligated to remand for a new analysis of the sentence pursuant to the Supreme Court's recent opinion in State v. Pierce, supra, 188 N.J. at 168-174, which modified the four-step State v. Dunbar discretionary extended-term sentencing process. Defendant was sentenced on count three (third-degree aggravated assault) to a five-year term and on count seven (conspiracy to commit second-degree aggravated assault) to a ten-year term. As both sentences are in excess of the former presumptive terms for the respective offenses, the case was in the pipeline when Natale II was decided, and the aggravating factors are three, six and nine, we are also obligated to remand these counts for resentencing without consideration of the presumptive terms in conformity with Natale II. State v. Thomas, 188 N.J. 137, 153-54 (2006).

Convictions affirmed; remanded for resentencing.

 

108 N.J. 80 (1987).

To avoid confusion, we remand the entire matter for resentencing but note that count two and count eight were merged, and count nine (fourth-degree unlawful possession of a weapon) contained a concurrent term of eighteen months, which is below the presumptive term and thus is not required to be resentenced under Natale II.

(continued)

(continued)

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A-6468-04T4

December 27, 2006