STATE OF NEW JERSEY v. ALEJANDRO JARAMILLO

This case can also be found at 197 N.J. 16, 960 A.2d 745.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0204-06T10204-06T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEJANDRO JARAMILLO,

Defendant-Appellant.

_______________________________________________________

 

Argued April 28, 2008 - Decided

Before Judges Stern, C. S. Fisher and

C. L. Miniman.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 04-01-0140.

Philip De Vencentes argued the cause for

appellant (Galantucci & Patuto, attorneys;

Mr. De Vencentes, on the brief).

Steven A. Yomtov, Deputy Attorney General,

argued the cause for respondent (Anne Milgram,

Attorney General, attorney; Mr. Yomtov, on the

brief).

PER CURIAM

Defendant was convicted of aggravated assault, as a lesser-included offense of murder, and of three counts of official misconduct. He was sentenced to the custody of the Commissioner of Corrections for eight years with 85% to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the aggravated assault and to concurrent seven-year sentences for each of the official misconduct convictions. The concurrent sentences for the misconduct were made to run consecutive to the sentence for aggravated assault. The judgment also provided that defendant forfeited his office as a Weehawken police officer, pursuant to N.J.S.A. 2C:51-2.

On this appeal defendant argues:

POINT I COUNTS 9, 10 AND 11 OF THE INDICTMENT VIOLATED

DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT

AND ART. I, PARA. 10 OF THE N.J. CONSTITUTION,

AND THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S

MOTION TO DISMISS THOSE COUNTS, AND IN FURTHER

DENYING HIS MOTION TO SEVER THOSE COUNTS FOR

TRIAL.

A. Counts 9-11 of the Indictment violate Defendant's

right under the "Nature and Cause" clause of the

Sixth Amendment and Art. I, para. 10 of the New

Jersey Constitution, and the trial court erred in

failing to dismiss said counts

B. The trial court erred in failing to sever Counts

9-11, alleging "false and misleading" statements,

from the remaining counts of the indictment

POINT II THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY

AS "LESSER INCLUDED OFFENSES" OF MURDER

"RECKLESS" OFFENSES, INCLUDING, OVER OBJECTION,

AGGRAVATED ASSAULT; AND HIS INSTRUCTIONS ON

SELF-DEFENSE AS APPLIED TO "RECKLESS" OFFENSES

WERE CONFUSING, SELF-CONTRADICTORY, INCOMPLETE,

AND ERRONEOUS AS A MATTER OF LAW, REQUIRING

A REVERSAL ON COUNT 1.

A. The trial court erred in instructing the jury

as to any "reckless" offense, and in particular

to any species of "assault" as "lesser included"

offenses of "murder"

B. The trial court's jury instructions on self-

defense and police justification [a]re erroneous,

confusing and incomplete, and improperly

instructed the jury that self-defense was not

an element of a charged "reckless" offense, the

absence of which the State must prove beyond a

reasonable doubt

POINT III THE TRIAL COURT ERRED IN DENYING DEFENDANT'S

MOTION TO SUPPRESS, AND HIS RULINGS ON THE

ADMISSIBILITY OF EVIDENCE DEPRIVED DEFENDANT

OF A FAIR AND IMPARTIAL VERDICT.

A. Defendant's Motion to Suppress should have been

granted, and the court's admission of evidence

obtained as a result of wiretap orders issued by

him ex parte following indictment prejudiced

Defendant's right to a fair and impartial

verdict

POINT IV THE IMPOSITION OF SENTENCE AT THE UPPER RANGE

OF A TERM FOR AGGRAVATED ASSAULT, AND THE

IMPOSITION OF A CONSECUTIVE TERM FOR OFFICIAL

MISCONDUCT WAS AN ABUSE OF DISCRETION.

Defendant was an off-duty police officer when he struck the seventeen-year-old victim, Jose Luis Ives, on July 16, 2003. Defendant insists he threw one "single defensive blow to the jaw" of the victim resulting in an "unprotected fall to the street," and causing the victim's head to strike the ground. We conclude that the question of causation warranted the instructions on "lesser included" offenses, reject defendant's contentions, and conclude that only the following discussion is warranted in a written opinion. R. 2:11-3(e)(2).

I.

Defendant was indicted for the murder of Jose Luis Ives, in violation of N.J.S.A. 2C:11-3(a) (count one); official misconduct by use of excessive force against Jose Luis Ives, Franklin Zambrano and Ivan Ives, in violation of N.J.S.A. 2C:30-2 (counts two, four and six); aggravated assault of Franklin Zambrano and Ivan Ives, in violation of N.J.S.A. 2C:12-1(b) (counts three and five); possession of a weapon (a broomstick handle), in violation of N.J.S.A. 2C:39-5(d) (count seven); possession of the weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d) (count eight); and official misconduct by preparing a false operation report, supplementary investigation report and juvenile delinquency complaint, in violation of N.J.S.A. 2C:30-2 (counts nine, ten and eleven).

After the denial of defendant's pretrial motions, the matter was tried to a jury. The trial judge dismissed count five, aggravated assault of Ivan Ives, after the close of all the evidence. The jury found defendant not guilty of murder, aggravated manslaughter, and reckless manslaughter of Jose Luis Ives, but guilty of aggravated assault of Jose Luis Ives, by "purposely, knowingly or recklessly caus[ing] serious bodily injury or purposely attempt[ing] to cause serious bodily injury," as a lesser-included offense of murder on count one. The jury also found defendant guilty of the official-misconduct counts regarding the filing of the false documents (counts nine, ten and eleven). Defendant was found not guilty on the other counts.

II.

On July 16, 2003, Jorge and Ivan Ives, then ten and eleven years old respectively, and Franklin Zambrano, age thirteen, were walking through the parking lot of a senior-citizens building in their neighborhood at approximately 11:00 p.m. They were with their friend Roland Castillo, going to meet the Ives's brother, Jose Luis, and his girlfriend Cathy Zambrano, Franklin's sister, on the other side of the lot in Weehawken. Jorge and Ivan testified that a car alarm was going off as they were walking, but initially denied touching the car or activating the alarm. Ivan later testified that the four boys met Jose Luis and Cathy "[b]efore we hit the alarm."

Jorge, Ivan and Franklin testified that defendant appeared in the parking lot, approached the four boys with a section of a broken broomstick, stated he was an off-duty police officer, and, in an angry tone, asked or yelled whether or why they were messing around with his car. The three boys said that defendant swung the stick at Franklin, but Franklin jumped out of the way, and the stick caught and "cut his shirt."

Defendant then "grabbed" Ivan and pointed the stick at his neck. According to Jorge, defendant then said he was an off-duty police officer and "that means he could kick our asses." Franklin testified that defendant said as an off-duty officer "he could beat the shit out of you." Jorge and Ivan recalled that defendant told the boys to leave.

The four boys left the parking lot, met Jose Luis and Cathy, and walked Cathy and Franklin home. Jorge and Ivan testified that as they, Jose Luis and Castillo were thereafter returning to the Ives's home, defendant and defendant's girlfriend were following them. The group stopped in front of the Ives's building, where defendant approached Jose Luis and gave him "a hard look." Jorge and Ivan both recalled that Jose Luis asked "what happened," and that defendant punched Jose Luis in his jaw. The brothers said that Jose Luis landed on his back, unconscious, and that defendant hit Jose Luis' head against the pavement when Jose Luis tried to get up. According to Ivan, as Jose Luis tried to "stand up to regain consciousness, [defendant] slammed his head against the concrete," and "banged [his] head against the ground."

Yakira Batista, who lived in Union City a few doors down from the Iveses, was sitting in front of her house on July 16, 2003, between 11:30 p.m. and midnight. Batista saw defendant punching Jose Luis in the face and "hitting" him while on the ground.

Jorge recalled that defendant ran away, and that defendant's girlfriend "went across the street" and talked on a cell phone. Ivan recalled that defendant said "you better go get some ice" and left.

Jorge told Ivan to get their father, and Ivan went inside. When he returned with their father, Ivan saw defendant's girlfriend across the street, and later saw her talking on a cell phone.

Jorge and Ivan noticed that defendant returned after the ambulance and police arrived. Union City police officer Ruben Rodriguez, who arrived at the scene after the ambulance, noted that defendant arrived at the scene ten or fifteen minutes later.

Defendant's "Operation Report," "Supplementary Investigation Report," and "Juvenile Delinquency Complaint," all dated July 17, 2003, were admitted into evidence. Defendant's "Operation Report" stated that, while off duty on July 17, 2003, at 11:56 p.m., defendant was "confronted by a male who assaulted me. The necessary force was then [sic] used to effectuate and [sic] arrest. The actor was taken to the hospital from injuries sustained as a result of this action." According to the report, defendant requested treatment "for stress related trauma of this incident," was "unable to leave a detailed report" at the time, and reported he would be able to give a complete report within "the next day or two."

Defendant's "Supplementary Investigation Report" stated that defendant and his girlfriend, Selina Valenzuela, while standing outside the doorstep of the home of her sister, Amanda Valenzuela, at Maple Street and Ridgely Place in Weehawken, "witnessed 4 males tampering and setting alarms on cars." According to the report, Amanda informed defendant that these same males "had been tampering and setting off alarms and vandalizing that same vehicle several times that night." Defendant borrowed Amanda's "cordless" telephone and reported the offenses to the Weehawken Police Department.

Defendant continued, in his "Supplementary Investigation Report," that he approached the offenders, identified himself as a police officer, told them to "stop what they were doing and to go home before they got into trouble with the police." The boys then left. Defendant's report further stated that, about fifteen minutes later, while walking on Pleasant Avenue with Selina and their dog, he saw three of the same males from the earlier incident with a fourth male who had not been present earlier. The group stopped, and as defendant and Selina were walking past them, the male who had not been present before "lunged at the undersigned and his girlfriend with a closed fist intending to strike the undersigned."

Defendant reported that he "quickly reacted to avoid injury to myself and my girlfriend and struck the individual, Jose [L]uis Ives, once on the left side of his face," with his "right fist" which caused him "to fall onto the front of a van" and then onto the street, with the "back of his head hit[ting] the blacktop." Defendant said in his report that he "immediately rendered first aid" and told the other males to go for help, but when they did not, defendant and Selina "started running to get access to a phone, in an attempt to get assistance." When they saw that help was arriving, they "returned to the location."

Weehawken Police Officer Ignazio Mitolo took a report from defendant at headquarters shortly after the incident which was substantially the same as defendant's description in his Supplementary Investigation Report. Defendant told Mitolo that when he and his girlfriend "walked past" the four boys, Jose Luis said, "[w]hat are you going to say now" and "struck" defendant "with a closed fist hand. A brief struggle ensued and [Jose Luis] fell to the ground." Defendant ran to his residence to call for police assistance, and returned when he saw police vehicles at the scene. Defendant did not complain about any physical injury.

On July 17, 2003, defendant filed a juvenile delinquency complaint against Jose Luis, accusing him of "attempt to cause bodily harm to a police officer in retaliation for the officer performing his duties. The above named juvenile lunged at officer closed fisted in an attempt to strike officer in the head."

According to the testimony of Detective Joseph Richards of the Hudson County Prosecutor's Office, Verizon and Weehawken Police Department records showed that defendant called the Weehawken police at 11:22 p.m. on July 16, 2003, from his girlfriend's cell phone, reporting the car alarm, and stating that "the kids" were "setting off the alarm." Verizon records showed that there were six calls to or from defendant's cell phone between 11:11 p.m. on July 16, 2003, and 12:27 a.m. on July 17, 2003. His girlfriend's number had three outgoing calls that night, between 11:50 and 11:59 p.m.

Dr. Albert Williams, an Assistant Medical Examiner and expert in forensic pathology, performed an autopsy on Jose Luis on July 25, 2003. Williams found two combinations of "abrasions and contusions," side by side and similar in size, in the middle of the back of Jose Luis's head. Williams also found, in Jose Luis's cranial vault area, three fractures in the skull and back of the base of the skull; a small piece of detached bone; a subdural hematoma (blood clot on the brain); a swollen brain; nine contusions in the front, middle and back of the brain, and a subarachnoid hemorrhage (a thin layer of blood on the meninges, the membrane around the brain). Jose Luis's injuries were closed-head, with no external bleeding. He sustained coup and contrecoup injuries, at the point of impact on the back of his head and on front of his head, caused by the brain moving forward. Williams also found hemorrhaging in Jose Luis's soft tissue muscles in the top of the neck near the head and lower in the neck near the shoulders. Finally, Jose Luis had a minor laceration on the inside of his mouth, which may have been caused by the insertion of a tube.

Williams testified, within reasonable medical certainty, there were "either one or two blunt force injury impacts to the back of [Jose Luis's] head." According to Williams, "blunt force injuries of the head" caused Jose Luis's death, and "the manner of death in this case was homicide."

However, on cross-examination Williams could not say that Jose Luis sustained more than one impact. He explained that one impact can cause more than one fracture line. Williams testified that "a significant force," such as an unprotected fall, is needed to cause a skull fracture, but he could not determine whether Jose Luis sustained his injuries from falling back on his head or from having his head banged against the street.

Dr. Michael Baden, an expert in forensic pathology, anatomic pathology and clinical pathology, and Chief Forensic Pathologist for the New York State Police, testified for the State. Baden noted that Jose Luis did not respond to treatment, developed severe pneumonia, and died seven and-a-half days after he was admitted to the hospital. Baden reviewed the autopsy findings and photographs, and concluded that Jose Luis's injuries were caused by "a great deal of force"; his midline fracture was the type of injury caused by an unprotected, backward fall. Baden agreed with Dr. Williams that Jose Luis's head hit the ground more than once, that the cause of death was "blunt head injuries," and that his "manner of death was homicide."

Dr. Mary Case, defendant's expert, was chief medical examiner of four counties in Missouri, a pathology professor at St. Louis University, and board certified in anatomical pathology, neuropathology and forensic pathology. She reviewed the autopsy report, photographs, and hospital records, Dr. Baden's report, the police report and witness statements. Case opined that Jose Luis died from "a head injury" resulting from a fall. She was reasonably medically certain that all of Jose's injuries resulted from "one single impact" to the back of his head. According to Case, "the two areas of abrasion" did not mean "that there is more than one impact" or "striking." The single area of subgaleal hemorrhage and the abrasion in the same place indicated "one impact to the back of the head."

Dr. Case also said that the fracture site did not necessarily show the point of impact, because the impact was "a broad area of force," and "the fracture is actually where the bone was bent out as opposed to where the force made it bend in." According to Case, slamming Jose's head into the pavement when he was already down would not have created sufficient force to produce the massive injuries that he sustained, including the "contrecoup pattern" injury and the fractures. Instead, "the acceleration of the head" falling from a standing position creates the considerable force that is "extremely damaging to the brain and skull."

III.

Defendant contends that the judge erred in denying his motion to dismiss counts nine, ten and eleven of the indictment. Defendant argues that these counts do not sufficiently specify the conduct constituting the crimes charged, and which statements in his reports were false, and thus violate his state and federal constitutional right to be informed of the accusations against him. We disagree. The essential charge was that these public documents were false. See Rule 3:7-3 (an indictment "shall be a written statement of the essential facts constituting the crime charged"); State v. Branch, 155 N.J. 317, 324 (1998); State v. Wein, 80 N.J. 491, 497 (1979).

An indictment should be dismissed only when it "is manifestly deficient or palpably defective," State v. Hogan, 144 N.J. 216, 229 (1996), and "the decision whether to dismiss an indictment lies within the discretion of the trial court, and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." Ibid. (citation omitted). We reject defendant's contention that the counts relating to the false documents should have been dismissed.

IV.

Defendant claims that the judge erred in denying his motion to sever counts nine, ten and eleven of the indictment. Defendant argues that the jury was "advised from the outset" that he was "lying" because of the charges of filing false reports, and that his filing of allegedly false reports would not be admissible under N.J.R.E. 404(b), in the trial of the other charges against him, because it would be evidence of other acts used to prove defendant's disposition to commit the crime. Defendant also complains that defending both sets of charges simultaneously adversely impacted his decision whether or not to testify.

The State contends that defendant was not prejudiced by the joinder of his homicide-related and official misconduct charges, because evidence of each would have been admissible in the trial of the other to show his intent, motive, and common scheme or plan.

In denying defendant's motion to sever, the trial judge said that the offenses "were part of the same alleged criminal episode." The judge reasoned that severance was not warranted "because the defense of filing . . . false reports goes hand in hand with the defense to . . . the assaultive part of the case."

Clearly, the fact defendant was a police officer was not material or necessary for consideration of the homicide-assault charges, although defendant asserts he approached the boys because of their misconduct and he was a police officer, and they testified he so advised them. On the other hand, defendant's status as a police officer was necessary to prove the elements of official misconduct charges as were the events which were allegedly falsely reported. Moreover, the false reports would undoubtedly be relevant to show defendant's consciousness of guilt. State v. Williams, 190 N.J. 114, 125-26 (2007). As a result, we can find no mistaken exercise of discretion by the trial judge in denying the severance.

Two or more offenses may be charged in the same indictment if they are "of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan." R. 3:7-6. If it appears that a defendant is prejudiced by a joinder of offenses in an indictment, the court may order separate trials of different counts. R. 3:15-2(b).

The decision whether to sever charges because of "the potential for prejudice" is within the trial court's discretion. State v. Pitts, 116 N.J. 580, 601 (1989). In Pitts the Court rejected defendant's argument that his motion to sever was improperly denied because "[a] critical inquiry is whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under Evidence Rule 55 [now N.J.R.E. 404(b)]," which allows evidence of other crimes to prove motive, intent, plan or state of mind. Id. at 601-02. The theory is that the defendant "will not suffer any more prejudice in a joint trial than he would in separate trials, because the evidence of the other alleged crimes would be admissible in any event." Id. at 602 (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983)). See also State v. Urcinoli, 321 N.J. Super. 519, 541 (App. Div.), certif. denied, 162 N.J. 132 (1999). In any event, under our scope of review, we find no basis to hold the lack of severance warrants a reversal of any of the convictions. See, e.g., State v. Morton, 155 N.J. 383, 451 (1998); State v. Chenique-Puey, 145 N.J. 334, 341 (1996); State v. Erazo, 126 N.J. 112, 131 (1991); State v. Ramseur, 106 N.J. 123, 265-66 (1987).

V.

Defendant contends that the judge erred in denying his motion to suppress evidence of calls to and from Selina's two cell phones on the night of the incident. Defendant also asserts that the State improperly used grand jury subpoenas to obtain telephone records, and that subsequent orders to produce additional telephone records were invalid because the State obtained them by using the results of the improper grand jury subpoena. Defendant further contends that the orders were not supported by probable cause.

The State argues that it is permitted to use post-indictment grand jury subpoenas to continue its investigation, and that it need not inform defendant of an ongoing investigation as long as it discloses evidence recovered. According to the State, the grand jury subpoenas were valid because they were relevant to a grand jury investigation and were returnable on a date on which the grand jury was in session.

Grand jury subpoenas, returnable on March 18 and March 24, 2004 (approximately two months after the indictment), commanded Verizon Telephone Company and Cellco Partnership, DBA/Verizon Wireless, to produce "subscriber and related information for cellular telephone facilities 201-725-9576 & 201-725-9577 for the date of July 16, 2003." The record does not reveal what the State ascertained as a result of these subpoenas, but the State represents that "[t]he subscriber information obtained as a result of the grand jury subpoenas merely confirmed Selina's grand jury testimony that the cell phones were registered in her name."

On March 26, 2004, Detective Richards submitted an affidavit in support of the State's ex parte application for orders compelling Verizon-New Jersey, Inc. and Cellco Partnership to disclose subscriber information, billing records and call detail for 201-725-9576 and -9577 for June and July 2003, pursuant to the Wiretap Act. Richards' affidavit sets forth the details of defendant's "Supplementary Investigation Report," the statements of Rolando, Jorge and Ivan, the grand jury testimony of the Ives brothers, and Jose Luis's death.

In his affidavit, Richards related Selina's grand jury testimony that, at the time of the incident, neither she nor defendant had a cell phone in their possession, and that defendant made his 11:22 p.m. call to headquarters from her sister Amanda's home. Selina had testified that she lent her cell phone with number 725-9576 to Amanda because Amanda "could not establish credit" to open her own account. Selina had also informed the grand jury that she had a second cell phone with number 725-9577, and Richards' affidavit recited that, "according to records obtained by subpoena from Cellco Partnership," cell numbers 725-9576 and -9577 were registered to Selina.

In his affidavit Richards concluded that there was "probable cause" to believe that the requested records would "provide specific and pertinent information" that defendant or Selina "had in their possession a cellular telephone or telephones at the time of the incident, to either prove or disprove" defendant's statement that he left the scene to access a telephone to call for first aid for Jose Luis.

The judge, who issued the requested orders, denied the motion to suppress because the State may continue its investigation after an indictment, particularly if the grand jury testimony "opens up additional avenues of inquiry" and may continue to use grand jury subpoenas. He believed the State's only obligation is to disclose the evidence that it discovers to the defense. See Rule 3:13-3. He believed the State could develop "the subscriber information" and "confirm the information" provided to the grand jury by Selina.

The judge also approved "the search made pursuant to a warrant issued by [the] Court," after the information was confirmed, noting that the State was not then obligated to inform defendant of its ongoing discovery. See N.J.S.A. 2A:156A-29(c), (e). The judge reserved decision on the use of the telephone records obtained, to be determined at trial.

At the trial, the prosecutor introduced records of telephone calls made on July 16 and 17, 2003, involving Selina's cell phone (725-9576). The judge concluded that calls at the relevant time after defendant encountered the boys on July 16 through the incident with Jose Luis were "relevant" as to why defendant left the scene. We find no basis for disturbing the rulings. See State v. Reid, 194 N.J. 386, 403-05 (2008); State v. Hilltop Private Nursing Home, Inc., 177 N.J. Super. 377 (App. Div. 1981).

In any event, the State points out that it already knew from her grand jury testimony that both telephone numbers were registered to Selina, and that the record contains no additional evidence obtained from the post-indictment grand jury subpoenas which was admitted at trial or used to obtain further discovery. R. 2:10-2. We find no basis for disturbing the denial of defendant's motion to suppress.

VI.

Defendant contends that the judge erred in disallowing cross-examination of the juvenile witnesses, Jorge and Ivan, to elicit the specific, pending, juvenile charges against them. Defendant argues that this error was especially prejudicial because the nature of the charges against Ivan and Jorge countered their portrayal of themselves as innocent bystanders harassed by a police officer on the night of the assault.

The prosecutor moved before trial to bar defendant from developing the subject. He related that Ivan was arrested in January 2006 for consumption of alcohol and "placed on deferred disposition for six months," after which the charge would be dismissed if he "stays out of trouble." According to defense counsel, Ivan was also charged with "improper behavior, fighting" and "creating a hazardous condition."

Jorge was arrested in January 2006 for "riot and possession of a weapon for unlawful purpose." The prosecutor said that the charges were "placed on the No Counsel calendar" and would be heard without a prosecutor and without defense counsel. The prosecutor explained that, in the absence of new charges, there would be no further "State involvement" with either juvenile.

The judge denied the State's motion and allowed "limited" cross-examination on the witnesses' juvenile charges. "It would be simply to determine whether or not that affected their ability to be truthful on this stand, because [now] they had [] a motive." The judge initially said that "the jury is going to know what the allegations were." The judge later excluded divulging "the specific offense because it has not been adjudicated." Defendant was given "more than enough that you need to be able to address the issue of bias, of prejudice, of addressing that."

On direct examination, Jorge testified that he had been arrested for a juvenile offense that year, but that his arrest did not influence his testimony. The judge then instructed the jury that Jorge had an open, unresolved juvenile court matter, but that it

doesn't have any bearing on the general credibility to be given to his testimony. Rather, this evidence has been offered to allow you to determine whether his testimony . . . is being influenced by possible bias, prejudice, interest or ulterior motive.

More specifically, this evidence may be relevant to the question whether [his] testimony is influenced . . . by a hope or expectation of favorable treatment.

Ivan also admitted that he was arrested in late 2005 for two juvenile offenses. The judge gave the jury the same instruction that he gave regarding Jorge's juvenile offenses and noted the evidence "has been admitted to allow [the jury] to determine whether his testimony [] has been influenced by possible bias, prejudice, interest or ulterior motive." The judge repeated essentially the same instruction in his general charge.

An accused in a criminal prosecution has the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. In Davis v. Alaska, 415 U.S. 308, 309-20, 94 S. Ct. 1105, 1107-12, 39 L. Ed. 2d 347, 349-56 (1974), noting that the right to confrontation included the right to cross-examination, the United States Supreme Court held that a criminal defendant should have been allowed to use the probationary status of the State's key witness, a juvenile, to show that he was biased. The Court held:

The State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. . . . [T]he State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State's interest in the secrecy of juvenile criminal records.

[Id. at 320, 94 S. Ct. at 1112, 39 L. Ed. 2d at 356.]

See also State v. Hare, 139 N.J. Super. 150, 155 (App. Div.), certif. denied, 70 N.J. 525 (1976), permitting the defense to cross-examine a State juvenile witness about his status as a probationer.

Defendant cites State v. Allen, 70 N.J. 474, 478 (1976), in which the Court allowed the prosecutor to obtain medical records of a defense witness, which were part of her juvenile proceeding, to determine whether to request a psychiatric examination. The Court noted that disclosure of the records was controlled by what is now N.J.S.A. 2A:4A-60, and that the defendant's right to confront the witness had to be "balanced against the interest of confidentiality of the juvenile's records." 70 N.J. at 484. Cf. State v. Krivacska, 341 N.J. Super. 1, 35 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002) (court must balance victims' right to privacy against defendant's right of confrontation to determine whether school records should be disclosed).

We find no abuse of discretion or constitutional deprivation because the trial judge declined "to permit the defense to cross-examine its key witnesses as to the nature of the juvenile charges," and concur in his comprehensive oral opinion of April 5, 2006, disposing of the prosecutor's motion. See, e.g., State v. Parnes, 134 N.J. Super. 61, 62-63 (App. Div. 1975) ("testimony before the Juvenile Court for purposes of cross-examination" is allowed); State v. Brown, 132 N.J. Super. 584, 587 (Law Div. 1975) (use of juvenile records for general impeachment purposes is not allowed, but information used to make a "specific attack on the witness' credibility" is permitted); see also N.J.R.E. 608; State v. Dreher (II), 302 N.J. Super. 408, 455-57 (App. Div.), certif. denied, 152 N.J. 10 (1997).

VII.

Defendant contends that the judge improperly charged the jury, over his objection, on aggravated assault of Jose Luis as a lesser-included offense of homicide. Defendant contends that aggravated assault may be based on reckless conduct, whereas the State's case was based on purposeful or knowing conduct. Defendant points out that the indictment did not charge aggravated assault of Jose Luis, and argues that the charge increased the possibility of a compromise verdict. The State counters that the facts supported a conviction of aggravated assault, and that the judge was thus correct in charging it.

Defendant conceded that the judge had to charge the jury on manslaughter, but objected to the State's request to charge assault. He argued, "[i]t's a death case. I think that[] stretches the bounds of the lesser included offense concept." The judge decided to charge "all of the assaults" as supported by the evidence. The judge said:

[the jury] could find that the death, though caused by what happened that night, was not within the design or contemplation of the Defendant . . . but they could find that the actions leading up to that were unjustifiable.

That the aggressor was Mr. Jaramillo . . . and that he did use force against Jose Luis Ives, with purpose, intent to commit a simple . . . or aggravated assault, attempt to cause serious . . . or significant bodily injury, all of these things are factually before the jury . . . . I have to give them charges relative to all the offenses.

We agree.

When a defendant does not request a charge on a lesser- included offense, the charge "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)). "No defendant should be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense that is clearly indicated in the record." State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). See also N.J.S.A. 2C:1-8d, e. The charge of a lesser-included offense, where warranted, must be given whether requested or not. Garron, supra, 177 N.J. at 180; State v. Powell, 84 N.J. 305, 319 (1980).

As the judge determined, there was "evidence by which a reasonable jury could conclude that the decedent died of a cause other than the injury actually resulting from the defendant's acts." A finding that defendant did not intend to kill Jose Luis or inflict serious bodily injury which would result in his death was entirely reasonable. The jury was entitled to find that defendant was not responsible for actually causing Jose Luis's death, but that he did intend to cause serious or significant bodily injury on him, or purposely, knowingly or recklessly caused serious or significant bodily injury by punching him.

The judge charged the jury on two types of aggravated assault, N.J.S.A. 2C:12-1(b)(1) (attempted to or did cause serious bodily injury "purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury") and 12-1(b)(7)

(attempted to or did cause significant bodily injury "purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury"). Defendant relies on State v. Christener, 71 N.J. 55 (1976), in which, on an appeal from a conviction of manslaughter, the Court held that a jury charge on first-degree murder was not supported by the evidence, id. at 64-67, and that, although legally correct, giving it constituted "plain and harmful error requiring a reversal," id. at 69. The Court in Christener found:

a real possibility that the jury could have found the defendant not guilty. Hence, the possibility that the jury, in the absence of sufficient evidence to sustain a first degree murder charge, may have reached a compromise verdict suggests that Christener may have suffered prejudice by that instruction in spite of his manslaughter conviction.

[Id. at 69-70.]

The Court "assumed that the jury inferred by the giving of such an instruction that the elements of that charge were present in the case." Id. at 73.

Here, unlike Christener, the elements of the objectionable charge--aggravated assault--were present, and there was no insertion of an unwarranted more serious offense into the charge that might have resulted in a compromise. In any event, Christener was recently overruled in State v. Wilder, 193 N.J. 398, 403 (2008). The Court in Wilder concluded that Christener's "real possibility" test overturned sound verdicts, supported by sufficient evidence, "based on speculation of a compromise verdict." Id. at 416. Moreover, aggravated assault can be, and was, properly charged as a lesser-included offense to murder, and that is so notwithstanding the fact that it - like aggravated manslaughter and manslaughter - has a reckless culpability alternative. See State v. Sloane, 111 N.J. 293, 301-04 (1988).

VIII.

Defendant contends that the jury charge on self-defense and police justification was erroneous and confusing, and that the judge improperly instructed the jury that self-defense was not applicable to offenses involving recklessness.

The State contends that the instructions on self-defense and police justification were correct. The State argues that whether or not self-defense applies to reckless crimes, the judge correctly instructed the jury that a finding of self-defense or police justification precluded conviction of any of the assaultive offenses.

The issue is troublesome. The issue of self-defense and justification, and its application to all charged crimes was discussed at length during the charge conference. While it appears that the judge did not believe the defense applied to offenses with a reckless culpability, he also felt it applied to crimes involving an assault. On the other hand, while it appears counsel and the judge were "on the same page" as to the charge by the end of the charge conference, it also appears defendant believed that self-defense applied to all offenses. Accordingly, we proceed on the basis that defendant objected to the charge as to self-defense even though no specific objection was made to the charge as given.

At the outset of the charge on self-defense, the judge said:

You are going to hear me charge as to self-defense or justification which applies to any person accused of committing certain crimes whether they are a Police Officer or not. Even though you are going to hear me say Defendant raised self-defense, remember, the burden of proof is always on the Defendant, is never on the Defendant. Forgive me, always on the State. So, even though something was raised by the defense, the State has to prove that an individual, Mr. Jaramillo, was not acting in self-defense. Defendant does not have to prove he was acting in self-defense because the Defendant doesn't have to be present here, all right.

In this case, if you find that Alejandro Jaramillo was acting as a Police Officer and was preventing a commission of a crime, namely an assault against him as a Police Officer or even private citizen by Jose Luis Ives, then another form of justification may be considered by you, that is, force used in law enforcement.

While in general self-defense one need not be acting as a Police Officer under the law of use of force by a law enforcement officer, Alejandro Jaramillo must be acting as a Police Officer. I am going to give you details of each of these justifications. You will hear me refer to and define non-deadly force as I will do in these justification charges.

. . . .

If you find that the State has not proved that he did not act in self-defense, you find Alejandro Jaramillo acted in self-defense, then you must find him not guilty because self-defense exonerates an individual completely from criminal liability as to any crimes assaultive in nature involved Jose Luis Ives. Self-defense while not an element of some other offense such as aggravated manslaughter or manslaughter because self-defense require one to be acting recklessly.

Although justification or self-defense is not an element either of manslaughter, State must prove beyond a reasonable doubt that the Defendant didn't act in self-defense because self-defense completely exonerates an individual's actions, all right, and one is exonerated from all criminal responsibility as to any assaultive offenses, including aggravated manslaughter or manslaughter or not guilty of aggravated assault.

The judge instructed the jury at length on the use of force and self-defense by a police officer and private citizen. Among other things, he said "[t]he charge regarding self-defense applies to purposeful or knowing crimes, for example, murder and certain aggravated assaults, but remember, you must always find . . . that an individual acting in self-defense exonerates completely from all assaultive behavior," and "the State must prove beyond a reasonable doubt that the defendant did not act in justification, which means self-defense." Subsequently, the judge repeated "[t]he State has the burden to prove beyond a reasonable doubt that the defense of self-defense is untrue." The judge also charged that aggravated manslaughter and manslaughter required a reckless state of mind as opposed to a purposeful or knowing state of mind, and that the State thus did not have to prove the absence of self-defense or justification "as an element" of those offenses. However, the judge also said that if the jury found self-defense or justification, they could not find defendant guilty of aggravated manslaughter or manslaughter.

Significantly, when the judge charged on aggravated assault involving serious bodily injury, he directed the jury that one of the elements that the State was required to prove beyond a reasonable doubt was "[t]hat the Defendant did not act as with all the other charges, [with] justification or self-defense." The judge went on to define purposeful, knowing and reckless culpability in connection with aggravated assault, but did not charge the jury that self-defense or justification applied only if the defendant acted purposely or knowingly. The judge also told the jury to consider self-defense and justification in their determination of defendant's guilt of aggravated assault by causing significant bodily injury and simple assault.

Under N.J.S.A. 2C:3-4(a), "the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." Under N.J.S.A. 2C:3-7(a), "the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor reasonably believes that such force is immediately necessary to effect a lawful arrest." The jury was essentially so advised.

We agree with defendant that "appropriate and proper jury charges are essential to a fair trial." Savage, supra, 172 N.J. at 387. See also State v. Martini, 187 N.J. 469, 477 (2006); State v. Jordan, 147 N.J. 409, 422 (1999). The judge must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). Here, the trial judge charged the jury in a fashion similar to the judge in State v. Rodriguez, 195 N.J. 165, 169-70 (2008). He improperly stated that self-defense did not apply where recklessness was the requisite culpability.

We nevertheless conclude that any error in directing the jury that self-defense or justification applied only to crimes with purposeful or knowing culpability requirements and not to reckless homicide, was harmless error, incapable of producing an unjust result. R. 2:10-2. See also State v. Ingram, __ N.J. __, __ (2008). Defendant was convicted only of aggravated assault (and filing false reports, to which self-defense does not apply), and the judge specifically instructed the jury to consider self-defense or justification in finding whether defendant was guilty of aggravated assault. The judge also repeatedly directed the jury that self-defense or justification exonerated defendant from all assaultive behavior. Any error in the instructions on aggravated manslaughter and manslaughter could not have produced an unjust result, because defendant was acquitted of those offenses. In any event, we cannot ignore the fact the verdict sheet expressly stated the jury found that defendant "purposely, knowingly or recklessly caused serious bodily injury or purposely attempted to cause serious bodily injury to Jose Luis Ives, and did not act in self-defense." (Emphasis added.) We also find no prejudice to defendant, and probably a likely benefit, because the judge charged the lesser offense of aggravated assault.

IX.

Defendant objects to the term of his sentence for aggravated assault and the consecutive feature of his sentences. He contends that, on the aggravated assault, the judge improperly considered the extent of the harm to the victim (death), the nature and circumstances of the assault, and the need to deter, as aggravating factors. Defendant further contends that the judge failed to consider the effect of parole ineligibility, and that the convictions should have merged.

The judge declined to merge the convictions because the assault and the filing of false reports were independent and distinct in time. He noted they "have different elements" and that defendant committed the assault as "a private citizen," but filed false reports as a police officer on three "independent" occasions. According to the judge, filing false reports was a use of defendant's office to "reinforce . . . corroborate . . . and perhaps to cover up what you did on the street, not once, not twice, but three times." The judge also believed consecutive sentences were appropriate in order to deter both defendant and other public officials from abusing the public trust.

The judge detailed the aggravating and mitigating factors and determined that, on the aggravated assault, the aggravating factors outweighed the mitigating. On the official misconduct counts, the judge found that the aggravating and mitigating factors were in equipose.

In sentencing defendant on the aggravated assault, the judge considered the fact the victim died, stating:

I am sentencing, much to the chagrin of the Ives family, to an aggravated assault and I know that death eventually occurred to this man. Legally, it was not found you did it. You were exonerated, but that doesn't mean I can't consider the nature and circumstances of what happened. I must. And that's an aggravating factor, one.

And two, gravity and seriousness of harm on the victim, not harm of death, of the harm, what you did when you struck him and he was unconscious, by the time EMTs came and never regained consciousness again for no reason, unprovoked because of something that occurs earlier with ten year old, pranks, and he goes into a coma never to regain consciousness again.

Defendant is correct that the judge may not override the jury's fact-finding or treat him as if he killed Jose Luis. The acquittal meant that defendant was not found to have caused the death or serious bodily injury resulting in the victim's death. But the fact the victim died following circumstances relating to defendant's conduct cannot be ignored in determining the appropriate sentence or in distinguishing between this and other second-degree aggravated assaults.

The consequences of this aggravated assault were more serious than others, as was the impact on the witnesses and survivors. While the judge's wording may not have been at all times precise and technically accurate, we find no basis under scope of review to upset the sentence. See State v. Roth, 95 N.J. 334 (1984); see also State v. Porter, 210 N.J. Super. 383, 396-97 (App. Div.), certif. denied, 105 N.J. 556-57 (1986), and 109 N.J. 58 (1987).

As stated in State v. Kromphold, 162 N.J. 345, 358 (2000):

When a sentencing court considers the harm a defendant caused to a victim for purposes of determining whether that aggravating factor is implicated, it should engage in a pragmatic assessment of the totality of harm inflicted by the offender on the victim, to the end that defendants who purposely or recklessly inflict substantial harm receive more severe sentences than other defendants.

Moreover, as the judge noted, defendant's objective in filing the false reports was to justify or cover up his assault on Jose Luis, and they were separate and subsequent acts. Because the assault and filing false reports were separate, independent crimes and the judge gave thorough reasons for the imposition of the sentence he gave and for imposing them consecutively, we cannot disturb them.

Defendant is incorrect that the judge failed to consider the effect of parole eligibility on plaintiff. The judge duly noted that the sentence that he was imposing for aggravated assault was subject to NERA, which meant that defendant would be required to serve 85% of the term imposed on the aggravated assault before being eligible for parole thereon.

Defendant also contends that the judge erred in declining to merge his convictions. However, aggravated assault and official misconduct require proof of different facts and elements. Attempting to cause or causing serious bodily injury to another is required for aggravated assault, N.J.S.A. 2C:12-1(b)(1), but that crime has nothing to do with official misconduct. Official misconduct requires proof that the defendant was a public servant who committed an unauthorized exercise of his official functions, to obtain a benefit for himself or another. N.J.S.A. 2C:30-2(a); State v. Quezada, __ N.J. Super. __ (App. Div. 2008). See also, e.g., State v. Best, 70 N.J. 56 (1976).

In sum, the judge addressed the issues of merger and whether the sentences should be concurrent or consecutive and the length of the sentences in considerable detail. He expressly addressed each issue. We can ask for no more. State v. Roth, supra.

The judgment of conviction and sentences are affirmed.

 
 

A third judge could not participate at argument, but the parties consented to the addition of a third judge to participate in the decision. Judge Miniman did not participate in the argument, but participated in the decision of the appeal.

The jury found defendant "purposely, knowingly or recklessly caused serious bodily injury or purposely attempted to cause serious bodily injury to Jose Luis Ives, and did not act in Self-Defense."

He was convicted under counts nine, ten and eleven of the indictment which alleged that, while a police officer in Weehawken, defendant filed a "false or misleading 'Operation Report' dated July 17th, 2003," "a false or misleading 'Supplementary Investigation Report' dated July 17th, 2003," and a "false or misleading '[Juvenile Delinquency] Complaint' . . . dated July 17th, 2003."

See N.J.S.A. 2C:12-1b(1).

These events transpired near the border of Weehawken and Union City.

Jorge called it a "sucker punch[]." Ivan testified his brother was "knocked out" by the punch.

Moreover, the reports that defendant filed would have been admissible in the trial on the murder-related charges, to establish that defendant struck Jose. The defendant asserts no Fifth Amendment claim to the contrary and, if not otherwise admitted into evidence, defendant might have sought to admit his reports to support his immediate claim of self-defense.

The judge dismissed the State's contention that the lack of an adjudication and the prosecutor's lack of involvement in the juvenile cases was dispositive.

We recognize that one of the alternative elements of aggravated assault involved reckless conduct and "extreme indifference to the value of human life." See N.J.S.A. 2C:12-1b(1).

(continued)

(continued)

40

A-0204-06T1

August 25, 2008